Industrial Relations Commission of New South Wales in Court Session CITATION: State of New South Wales (NSW Police) v Inspector Covi [2005] NSWIRComm 303 APPELLANT: State of New South Wales (NSW Police) PARTIES: RESPONDENT: Inspector Paul Covi FILE NUMBER(S): IRC 197 of 2005 CORAM: Walton J Vice-President; Schmidt J; Backman J CATCHWORDS: Appeal - occupational health and safety - reasons for judgment - police officer struck by motor vehicle whilst performing speed detection duties - plea of not guilty at first instance - risk under Act - charge encompassed risk of being struck both deliberately and accidentally - risk correctly identified at first instance - novus actus interveniens - causation - causal nexus between risk and failure established - appeal dismissed - appellant ordered to pay costs. Criminal Appeal Act 1912 LEGISLATION CITED: Industrial Relations Act 1996 Occupational Health and Safety Act 1983 Allianz Australia Insurance Limited v GSF Australia Pty Limited [2005] HCA 26 Campbell v The Queen (1981) WAR 286 Crown in the Right of New South Wales (Department of Education and Training) v Maurice O'Sullivan [2005] NSWIRComm 198 Haynes v CI & D Manufacturing Pty Ltd (1994) 60 IR 149 Inspector Covi v The Crown in the Right of the State of New South Wales (NSW Police) [2004] NSWIRComm 128 Inspector Covi v The Crown in the Right of the State of New South Wales (NSW Police) [2004] NSWIRComm 400 Johnson v Miller (1937) 59 CLR 467 O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) (2003) 125 IR 361 CASES CITED: Royall v The Queen (1990) 172 CLR 378 South Sydney Junior Rugby League Club Limited v Inspector Bestre [2005] NSWIRComm 116 State Transit Authority of NSW v Guillante (2003) 123 IR 237 WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor (2004) 135 IR 166 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 Keelty) v The Crown in the Right of New South Wales (Police Service of New South Wales (No 2) (2001) 104 IR 268 WorkCover Authority of New South Wales (Inspector McMartin) v Broken Hill Pty Co Ltd (1999) 96 IR 32 HEARING DATES: 08/15/2005 EXTEMPORE JUDGMENT DATE: 08/15/2005 APPELLANT: Mr R Burbidge QC with Mr I Taylor of Counsel SOLICITOR: Mr G De Courcey Crown Solicitor LEGAL REPRESENTATIVES: RESPONDENT: Mr S Rushton SC with Mr M Cahill of Counsel SOLICITOR: Mr J O'Connell Workcover Authority of NSW JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: WALTON J, Vice- President SCHMIDT J BACKMAN J 1 September 2005 Matter No IRC 197 of 2005 The Crown in the Right of the State of New South Wales (NSW Police) v Inspector Paul Covi Appeal by the Crown in the Right of the State of New South Wales (NSW Police) against the judgment of Justice Boland given on 17 December 2004 in matter no. IRC 2013 of 2002 REASONS FOR JUDGMENT [2005] NSWIRComm 303 1 This is an appeal against conviction pursuant to s 196 of the Industrial Relations Act 1996 from decisions of Boland J given on 28 May 2004 in Inspector Covi v The Crown in the Right of the State of New South Wales (NSW Police) [2004] NSWIRComm 128 and on 17 December 2004 in Inspector Covi v The Crown in the Right of the State of New South Wales (NSW Police) [2004] NSWIRComm 400 in relation to a charge laid against the appellant pursuant to s 15(1) of the Occupational Health and Safety Act 1983. 2 On 8 February 2005 President Wright J granted a stay of the fine imposed at first instance until the disposition of the appeal or other order of the Court. 3 On 15 August 2005, after hearing the appellant's submissions, the Full Bench declined to hear the respondent and delivered an ex tempore judgment in which the appeal was dismissed, the stay was set aside and the appellant was ordered to pay the respondent's costs of the appeal. These are the reasons for our decision. FACTS 4 The facts were succinctly stated by Boland J in Inspector Covi v The Crown in the Right of the State of New South Wales (NSW Police) [2004] NSWIRComm 128 at [1]-[2]: 1 On 18 May 2000, Mark Wayne Johnson, a sergeant of police at the time and Glenn John Hartley, then a senior constable, were conducting a speed detection and enforcement operation on Budgewoi Road at Noraville, in the State of New South Wales using a laser speed detection unit set up on the side of the road. At about 5.00 pm Mr Johnson detected a vehicle exceeding the speed limit. Mr Johnson stepped onto the roadway and signalled the driver of the vehicle that he wanted the vehicle to stop. The vehicle continued to proceed towards Mr Johnson, increasing its speed as it did so. Mr Johnson tried to avoid the vehicle but it swerved towards him and the front right corner of the vehicle struck Mr Johnson throwing him into the air and causing serious injuries. 2 The vehicle did not stop but police later apprehended the driver, Gregory Paul Dalton. Mr Dalton had an extensive criminal history including numerous serious traffic offences, armed robbery, assault, and drug and alcohol offences. At the time of the incident involving Mr Johnson the vehicle driven by Mr Dalton was unregistered and uninsured. Mr Dalton was a disqualified driver driving under the influence of alcohol. THE CHARGE 5 The following charge was laid against the appellant pursuant to s 15(1) of the Occupational Health and Safety Act 1983: On 18 May 2000, in the vicinity of the intersection of Budgewoi Road & Gomul Street at Noraville, in the State of New South Wales, did fail to ensure the health, safety and welfare at work of all its employees, in particular, Mark Wayne Johnson and Glenn John Hartley, whilst undertaking Lidar Speed Detection Operations, contrary to section 15(1) of the Occupational Health and Safety Act, 1983. The particulars of the charge were: (a) The defendant, at all material times, employed a number of police personnel including Mark Wayne Johnson and Glenn John Hartley. (b) The defendant, at all material times, conducted Lidar Speed Detection Operations on New South Wales roads. (c) The defendant failed to maintain a system of work for the conduct of the Lidar Speed Detection Operations that was safe and without risk to the health and safety of its employees. (d) The defendant failed to provide such information as was necessary to ensure the health and safety at work of its employees whilst conducting Lidar Speed Detection Operations. (e) The defendant failed to provide such adequate instructions and training to its employees as was necessary to ensure their health and safety whilst conducting Lidar Speed Detection Operations. (f) The defendant failed to provide such adequate supervision of employees as was necessary to ensure their health and safety whilst conducting Lidar Speed Detection Operations. The prosecutor did not press particular (f) at the trial. FINDINGS AT FIRST INSTANCE 6 The appellant did not challenge any findings of fact, noting that at the trial they were largely common ground. We draw particular attention to the following findings: (1) The customary procedure used by police to stop vehicles involved wearing a reflective vest, stepping on to the carriageway and (using a reflective sign or hand signal) signalling the driver to stop and pull over; (2) The defendant acknowledged that Mr Johnson was exposed to risk in stepping onto the carriageway (described as akin to the risk encountered by someone crossing the road) and that the defendant was aware of that risk; (3) Standing on a roadway signalling drivers is patently a hazardous operation; (4) There is an obvious risk of miscreants seeking to run down police officers when they are on the carriageway. Even the normally responsible driver may present a risk to a police officer through inattention, carelessness or mechanical defect; (5) The defendant had identified the risk to safety involved in the stopping procedure but took no steps to manage that risk in an effective manner; (6) There is no reason that would make it imperative to step onto the roadway to signal a driver to stop. On this occasion another driver was signalled and stopped without the police officer stepping onto the roadway; (7) There was no policy reason why drivers could not be warned about the presence of police (for example by clearly visible, marked police cars); (8) The marked police car could have been used as a barrier - the officers could have signalled from behind the marked police car; (9) There was no evidence that operating in this fashion would reduce the effectiveness of the stopping activity; (10) A system that provided for a barrier or buffer zone between the police and oncoming vehicles together with appropriate signs indicating a police presence is a significantly safer arrangement than "a police officer standing on the roadway without a shred of protection other than the officer's wits and quick physical reactions"; (11) If Mr Johnson had been instructed not to step onto the carriageway and to place himself behind a barrier when engaged in roadside speed detection and enforcement operations it is beyond reasonable doubt that he would have followed those instructions and he would not have been exposed to the degree of risk that he experienced on 18 May 2000; (12) The question of safety was left to the officers themselves, relying upon their experience and wits, "to manage as best they can". It could not be said that there was any system of work in place that was directed to or had an emphasis on safety; (13) Nor could it be said that there was any adequate information or instruction issued by the defendant. Equally, there was no evidence of any adequate training directed to carrying out their roadside speed detection duties. CONSIDERATION 7 The appellant has a right to appeal its conviction on any ground which involves a question of law pursuant to s 196 of the Industrial Relations Act 1996 and s 5(1)(a) of the Criminal Appeal Act 1912. 8 In its grounds of appeal, the appellant contended that Boland J made the following errors of law: (1) Equating the risk of accidental injury with that of injury from deliberate action, or in the alternative by failing properly to distinguish those risks; and (2) Holding that the risk particularised was causally connected with the want of safety demonstrated by the particular occurrence of injury to officer Johnson. 9 The appellant did not raise any issue concerning the rejection at first instance of its defence pleaded under s 53(a) of the Act. Nor did it raise any issue concerning the severity of the sentence. It simply sought that the sentence be quashed on the basis that the conviction was in error. 10 Both at first instance and in the appeal, it appeared that the appellant was in substance putting an argument that has already been rejected by this Court in WorkCover Authority of New South Wales (Inspector Keelty) v The Crown in the Right of New South Wales (Police Service of New South Wales (No 2) (2001) 104 IR 268 which was followed 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, which in turn was upheld by the Full Bench on appeal (see The Crown in the Right of New South Wales (Department of Education and Training) v Maurice O'Sullivan [2005] NSWIRComm 198). 11 It should now be beyond doubt that (subject to s 53 defences) employers are obliged to minimise or reduce risks which may be created by external factors outside the employer's control such as the uncontrollable, unpredictable acts of a violent armed member of the public (see Police Service of New South Wales (No 2) and South Sydney Junior Rugby League Club Limited v Inspector Bestre [2005] NSWIRComm 116) or the violent acts of severely intellectually disabled students considered recently by the Full Bench in The Crown in the Right of New South Wales (Department of Education and Training) v Maurice O'Sullivan. 12 In oral submissions the appellant disavowed any attempt to challenge that line of authority, and emphasised that its case centred upon delineation of the appropriate risk and the related issue of causation. As we discuss below, the appellant's arguments relating to risk were subsequently reduced to an argument concerning the adequacy of particulars. This had a corresponding impact upon its submissions as to causation. 13 The appellant contended that Boland J erred by conflating the risk of accidental injury with the risk of injury due to deliberate actions. According to the appellant's written submissions, the former was the risk particularised by the prosecutor; the latter was the risk actually proven; and the two did not marry. But we can find no reason to introduce such an artificial distinction. The entire case below proceeded on the basis of the general risk of collision between a police officer and a motor vehicle on the roadway - whether such a collision be deliberate or accidental. 14 We reject the appellant's written submission that "the matter was presented to the Court as one of risk to an employee of accidental injury"; in further and better particulars of the charge the prosecution alleged in writing on numerous occasions that: · "the defendant's system of work placed employees at risk of being struck by moving motor vehicles"; · "The risk to safety about which the prosecutor makes complaint is the risk of the relevant officers being stuck by moving vehicles whilst the officers were present on the carriageway[s] for the purpose of signalling a driver[s] to bring their motor vehicle[s] to a stop on the side of the carriageway"; · "the system of work was not safe in that the defendant's employees were permitted, whilst undertaking Lidar operations, to step onto the carriageway for the purpose of signalling [a] driver[s] to bring their motor vehicle[s] to a stop at the side of the carriageway, thereby exposing the relevant officers to a risk of being struck by [a] motor vehicle[s]"; and · " ...the Prosecutor alleges that Mark Wayne Johnson and Glenn John Hartley were at risk whilst on the carriageway for the purpose of signalling the driver[s] of [a] motor vehicle[s] to move to the side of the roadway and bring their vehicles to a halt in circumstances where inadequate steps had been taken to reduce - let alone eliminate, the risk of those officers being struck by a motor vehicle. In particular, Mark Wayne Johnson was placed at risk of being struck by and was struck by a motor vehicle bearing New South Wales registration number SWY-956. The Prosecutor also alleges that Glenn John Hartley was placed at risk of being struck at the relevant time and place by a motor vehicle driven by Helen Anne Robinson Styan." 15 These further and better particulars clearly include accidental and deliberate collisions and (despite being invited to do so by the Full Bench) the appellant did not refer to any statement or submission by the respondent in support of its contention that the charge should be read in a restrictive manner. Moreover, it was clear from the prosecutor's opening submissions at first instance that the prosecution planned to deal with the risk of both deliberate and accidental collisions. His Honour's judgment also makes it clear that in its case below the appellant sought to address the risk of an officer being struck deliberately while on the carriageway. At [49], his Honour noted the appellant's submission that: ....on 18 May 2000 no system of work, instructions, information or training regarding safety would have avoided the risk of Mr Johnson being hit whilst on the carriageway. Mr Dalton was apparently intent on hitting Mr Johnson and despite Mr Johnson's attempts to evade the vehicle - even crossing the centre line of the roadway to do so - he was unsuccessful. 16 Ultimately, in oral submissions the appellant resiled from its written submissions, conceding (a) that the prosecution did not at any stage confine their case to the risk of injury arising from an accident; and (b) that the charge related to one risk - the risk of being struck - which could arise in two ways: accidentally or deliberately. 17 The appellant relied upon the observations of Dixon J in Johnson v Miller (1937) 59 CLR 467 at 489 that a prosecutor: "...should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be appraised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge." 18 We do not see that Johnson v Miller assists the appellant in this case. That case concerned a prosecution for breach of the Licensing Act (1932-1935) SA on the basis that a certain person was seen emerging from licensed premises during prohibited hours. The prosecutor failed to provide particulars as to the identity of that "certain person". In a prosecution under the Occupational Health and Safety Act 1983, the prosecutor is not restricted by the factual circumstances surrounding an injury in bringing a charge although those circumstances may provide evidence in support of the prosecution's allegation of exposure to risk. In this case, we are satisfied that the particulars provided were sufficient to enable the appellant to appreciate the case it was required to meet and that the proceedings at first instance were conducted on the basis of those unambiguous particulars and the prosecutor's opening submissions. 19 Nor do we accept that there was any failure in this case to properly distinguish the risk (a matter impliedly accepted by the appellant in its concession during oral submissions that there was only one risk which could arise in two ways): the risk considered by Boland J in concluding that the offence had been proven was quite properly the risk enumerated in further and better particulars. Indeed, his Honour would almost certainly have fallen into error had he artificially limited the charge to consider only the risk of being accidentally struck by a motor vehicle. 20 The observations of Boland J at [51], which we endorse, show how contrived the appellant's distinction is: [51] This submission begs the question of whether Mr Johnson should have been on the carriageway in the first place given the obligations on the defendant to ensure the safety of its employees. It is accepted that policing is a dangerous occupation, highway patrol duties no less so. Standing on a roadway signalling drivers to pull over is patently a hazardous operation. Putting aside the obvious risk of the miscreant who may have a grudge against police and who might take the opportunity to exact retribution for some perceived past wrong by running a police officer down, even the normally responsible driver may present a risk to police involved in roadside detection duties. This could occur either through inattention or carelessness or because the vehicle being driven was mechanically defective. ... 21 In this case, there was no dispute that the appellant could not "control" or otherwise affect the conduct of a person such as Mr Dalton. However, as the respondent submitted, the appellant was equally unable to control the behaviour of a distracted driver, a negligent driver, a driver heavily effected by alcohol or drugs, a driver struck by panic, a driver who "blacks out" (for example due to diabetes), or of a driver whose vehicle experienced brake failure or some other mechanical defect. 22 By way of contrast, the appellant was able to plan, control and dictate the practices of its officers by specifying and enforcing standard operating procedures and safe work methods aimed at controlling risks which cannot be eliminated thereby reducing the risk of injury to its officers: see Police Service of New South Wales (No 2) and South Sydney Junior Rugby League Club Limited v Inspector Bestre. As the respondent noted, Lidar speed detection duties were planned, and carried out at pre-determined locations within a command. The evidence showed that when the appellant conducted other on-road enforcement duties (such as random breath testing) it adopted a high visibility approach using advance warning signs, flashing lights, illuminated roof top signs, designated stopping zones and barriers to put traffic on notice of the presence of police officers and to reduce the risk of motor vehicles colliding with officers. This evidence underlines the appellant's concession that officers were placed at risk by being on the road and that the appellant was aware of the risk. The appellant did not challenge his Honour's findings that there was no policy reason why drivers could not be warned about the presence of police at a Lidar speed detection site; that the marked police car could have been used as a barrier; that such an arrangement would have been significantly safer; and that there was no evidence that operating in this fashion would have been less effective. 23 We are similarly unpersuaded by the appellant's submissions concerning causation. Each of the appellant's written submissions was mired in its original contention that Boland J incorrectly considered the risk of being struck by a motor vehicle accidentally, rather than the risk of being deliberately struck (which we have already rejected). The appellant's written submissions in reply reiterated its submissions at first instance that the prosecution was required to (and failed to) establish a causal nexus between the defendant's failures and the risk of being struck by a motor vehicle deliberately. 24 The fact that Sergeant Johnson may have remained at risk from a driver deliberately intending to run him down even if he had stayed off the carriageway is irrelevant and speculative. The appellant's suggestion that high visibility may increase the risk to an officer engaged in Lidar operations was also speculative. There was no evidence on either point. It cannot be doubted that the relevant risk - that of Sergeant Johnson being struck by a motor vehicle - was heightened by his work practice of stepping on to the carriageway in order to signal vehicles to stop. Indeed, specific findings to this effect were unchallenged by the appellant. In a very practical sense, the risk to Sergeant Johnson's health and safety increased or become more serious as a consequence of the appellant's failures. 25 We refer, in this latter respect, to the approval given by the majority of the High Court (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ) in Royall v The Queen (1990) 172 CLR 378 (at 387, 411-12 and 425 respectively) to the statement made by Burt CJ in Campbell v The Queen (1981) WAR 286 at 290 as follows: [it is] enough if juries [are] told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter. 26 The observations in WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor (2004) 135 IR 166 could have been written in response to the present appellant's written submissions. After referring to O'Sullivan and Police Service (No 2), the court observed (at [133]): 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. (see also South Sydney Junior Rugby League Club at [42]) 27 The correct approach to causation can be found in WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239 at 253: As previously mentioned, the defendant raised the question of causation. Many decisions of this Court and its predecessors have demonstrated that the mere occurrence of an accident causing injury to an employee is not in itself sufficient to establish the commission of an offence under s 15(1). It is necessary to establish both a relevant 'failure' on the part of the employer and a 'causal nexus' between the conduct of the defendant and the consequent risks to the health, safety and welfare of its employees: (see McMartin v The Broken Hill Proprietary Co. Ltd (2000) 100 IR 241; Drake Personnel Ltd v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 91 IR 432 at 449; Cullen v State Rail Authority (NSW) (1989) 31 IR 207 at 209; State Rail Authority (NSW) v Dawson (1990) 37 IR 110, at 120-121; Haynes v C I & D Manufacturing Pty Ltd 1995) 60 IR 149, at 1560157 and Kirby v A & M I Hanson Pty Ltd ( 1994) 55 IR 40 at 49-50). There must be a causal connection between the alleged conduct of the defendant and the alleged risk, that is, the alleged failure must cause the detriment to the safety of the person concerned: see WorkCover Authority (NSW) v Maitland City Council (1998) 83 IR 362 at 377. However, it is not necessary to demonstrate a causal connection between conduct of the defendant and the precise circumstances of the accident which gave rise to the prosecution. Rather, the causal connection must be between that conduct and the risk to safety. (see, as cited with approval, in State Transit Authority of NSW v Guillante (2003) 123 IR 237 at [3]) 28 In this case, it was not necessary for the prosecution to demonstrate a causal connection between the conduct of the defendant and the actions of Mr Dalton in deliberately hitting Sergeant Johnson. The causal connection must be between the defendant's conduct and the risk of Sergeant Johnson being struck by a motor vehicle whilst conducting the Lidar operation. And that connection was established. The appellant did not challenge his Honour's findings that: there was no system of work directed to or with an emphasis on safety; the question of safety was left to the officers themselves "to manage as best they can"; a system that provided for a barrier or buffer zone with appropriate signs indicating police presence is significantly safer than "a police officer standing on a roadway without a shred of protection other than the officer's wits and quick physical reaction"; and if Mr Johnson had been instructed not to step onto the carriageway and to place himself behind a barrier it was beyond reasonable doubt that he would have followed those instructions and would not have been exposed to the same degree of risk. 29 The appellant sought to rely upon McHugh J's examination of causation in Royall v The Queen (1990) 172 CLR 379 in the context of a murder charge under the Crimes Act 1900 (NSW). But the very passages referred to by the appellant (at pages 440-441), when read in conjunction with Kirk and Kellogg cited above, reveal that Royall cannot assist the appellant in this case. The Occupational Health and Safety Act does not require a causal link between an act or omission and injury or damage; it requires a causal connection between the defendant's failure and the relevant risk to safety. 30 McHugh J observed (at 441) that " the common law doctrine of causation has not accepted that a person is criminally responsible for an event or occurrence simply because his or her act or omission was a causa sine qua non of that event or occurrence". But this conclusion must be seen in the context of the offence being considered by his Honour. 31 It is trite to observe that liability for murder requires the prosecution to establish mens rea, or criminal intent. This was an important aspect of McHugh J's analysis in Royall: the extent to which causation regulated the attribution of legal responsibility for a crime to a person. By way of contrast, under the Occupational Health and Safety Act 1983, if the risk is both present and capable of being known to be present, liability is absolute, subject to the defences provided: Haynes v CI & D Manufacturing Pty Ltd (1994) 60 IR 149 (and see the discussion in WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor [2004] NSWIRComm 207 at [124]-[125]). Some caution should be exercised when interpreting general criminal cases in the context of tailored statutory regimes with criminal penalties: see the discussion of the High Court in Allianz Australia Insurance Limited v GSF Australia Pty Limited [2005] HCA 26 at [41], where the court held that the question of causation must be determined in light of the subject, scope and objects of the relevant Act (in that case, the Motor Accidents Act 1988 (NSW)). 32 The need for such caution may be illustrated by the appellant's erroneous reliance on the doctrine of novus actus interveniens. We do not accept that Mr Dalton's actions break the causal nexus between the defendant's failures and the general risk to safety of being hit by a motor vehicle. To focus on Mr Dalton's actions unnecessarily limits the scope of the risk the subject of the charge. The difference between the immediate cause of an accident (or causa causans) and the cause without which the relevant risk could not have occurred (or causa sine qua non) was described by Hungerford J in WorkCover Authority of New South Wales (Inspector McMartin) v Broken Hill Pty Co Ltd (1999) 96 IR 32 (which concerned a structure which collapsed when it was hit by a hammer) at 43-44. We respectfully agree with his Honour's analysis. 33 The appellant's arguments on causation (and its reliance upon the doctrine of novus actus interveniens) became even more strained following its concession during oral submissions that there was in reality one risk which could arise in two ways. It offered no satisfactory answer to this question: if the risk is correctly identified as exposure to moving vehicles on the roadway which can materialise either through a driver accidentally striking a police officer or deliberately striking a police officer (which, as we have noted, was conceded), how could it be "novus actus interveniens" for the risk to materialise by a driver deliberately striking a police officer? In our view, this rhetorical question demonstrated the illusory nature of the appellant's submissions on causation. 34 Mr Dalton's deliberate actions were merely the manifestation of the risk of the police officer in question being hit by a moving car when standing on a roadway in consequence of his employer having failed to avert that risk (as particularised and opened by the Prosecutor at first instance). 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