Industrial Court of New South Wales CITATION: Rodney Morrison v Hunter Quarries Pty Limited and Another [2009] NSWIRComm 179 PROSECUTOR: Rodney Morrison PARTIES: DEFENDANTS: Hunter Quarries Pty Limited Richard Alexanda Badior FILE NUMBER(S): IRC 954 and 955 of 2007 CORAM: Backman J CATCHWORDS: Occupational health and safety - Occupational Health and Safety Act 2000 - pleas of guilty to section 8(1) and section 8(1)/section 26(1) offences - operator of Terex off-road dump truck fatally injured when truck becomes out of control and plunges over the embankment of the haul road at Karuah Quarry - multiple failures to ensure the operator's safety including defective brakes, non-functional steering and inadequate maintenance of the truck - agreed facts - disputed facts - objective seriousness - nature and quality of offences - consequence of breaches of 2000 Act - conduct of operator of truck considered - reasonable foreseeability of the risk to safety - remedial measures available - general and specific deterrence - systems of work pre-accident - post-accident changes - pleas of guilty utilitarian value considered - no prior convictions - cooperation and assistance - contrition - capacity to pay - whether Court should exercise discretion under section 10 Crimes (Sentencing Procedure) Act 1999 in favour of individual defendant - penalty - victim impact statements - orders. Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Mines Inspection Act 1901 Occupational Health and Safety Act 2000 Anthony Keith Coleman (1991) 56 ACrimR 369 Cahill v State of New South Wales (Department of Community Services) (No 4) (2008) 182 IR 231 Capral Aluminium Ltd v WorkCover Authority of NSW (2000) 49 NSWLR 610 Daly Smith Corporation (Aust) Pty Ltd v WorkCover Authority (NSW) (Inspector Mansell) (2006) 151 IR 173 Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 Inspector Colin Wall v Orica Australia Pty Limited [2009] NSWIRComm 146 Inspector Jennifer Short v The Crown in the Right of the State of NSW (NSW Police) [2007] NSWIRComm 138 . Inspector Glass v Foamex Polystyrene Pty Ltd [2004] NSWIRComm 100 Inspector Legge v Intercast & Forge Pty Ltd [2006] NSWIRComm 182 Inspector Mayo-Ramsay (WorkCover Authority of NSW) v The Crown in the Right of the State of New South Wales (NSW Fire Brigades) (No 2) [2007] NSWIRComm 168 Inspector Stephen Cooper v Rail Infrastructure Corporation [2008] NSWIRComm 92 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 CASES CITED: Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 Mark Andrew Bollen (1998) 99 A Crim R 510 Morrison v Powercoal Pty Ltd (2003) 130 IR 364 R v Berg [2004] NSWCCA 300 Reg. v Rushby [1977] 1 NSWLR 594 R v Thomson & Houlton (2000) 49 NSWLR 383 Rail Infrastructure Corporation v Inspector Victor Page [2008] NSWIRComm 169 Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 Salvatore Previtera (1997) 94 A Crim R 76 South Sydney Junior Rugby League Club Ltd v WorkCover Authority of NSW (Inspector Bestre) (2005) 142 IR 373 Veen and The Queen (No 2) (1988) 164 CLR 465 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Anor (2000) 95 IR 383 WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd (2004) 136 IR 449 WorkCover Authority of New South Wales (Inspector Ross Wolf) v South Eastern Sydney and Illawarra Area Health Service (No 3) [2007] NSWIRComm 268 WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2005) 137 IR 462 HEARING DATES: 7 - 9 October 2008, 20 - 24 October 2008, 28 October 2008, 2 December 2008, 4 - 5 December 2008, 9 - 10 February 2009 and 23 March 2009 Written submissions: 30 March 2009 and 6 April 2009 DATE OF JUDGMENT: 30 October 2009 PROSECUTOR: Mr R J Burbidge QC with Mr I Taylor of counsel Solicitors: Crown Solicitor's Office (Mr C Fesel) LEGAL REPRESENTATIVES: DEFENDANTS: Mr J Phillips SC with Ms W Thompson of counsel Solicitors: Spark Helmore Lawyers (Ms D Hollyoak) JUDGMENT: - 5 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: BACKMAN J Friday, 30 October 2009 Matter No IRC 954 of 2007 RODNEY MORRISON v HUNTER QUARRIES PTY LIMITED Prosecution under section 8(1) of the Occupational Health and Safety Act 2000 Matter No IRC 955 of 2007 RODNEY MORRISON v RICHARD ALEXANDA BADIOR Prosecution under section 8(1) and section 26(1) of the Occupational Health and Safety Act 2000 JUDGMENT OF THE COURT [2009] NSWIRComm 179 Table of Contents A. Introduction 5 B. Agreed Facts 7 The haul road and embankment 7 The truck and its operation 9 The retardation and braking system 10 Steering 13 Darren Smith's fatal accident 14 Maintenance of the truck 15 Pre-start checks 17 C. Facts in dispute 18 1. The haul road - particular A 20 Whether Hunter Quarries were in possession and aware of the contents of the Handbook prior to 14 June 2005. 20 Whether the majority of the berms were not at or above a height of half the wheel height of the Terex 28 Truck. Whether "almost none" of the berms were that height. 21 Whether there were more parts of the haul road where there were no berms (that is, they were not continuous). 23 2. The truck's brakes - particular B 26 Whether the loss of braking performance on the right hand centre wheel, caused by a pre-existing oil leak, was not less than 70 per cent. 26 Whether the front brake reservoir was empty before the incident rendering the front brakes effectively inoperable. 28 Whether there was a pre-existing leak on the front brake air circuit from a split in the hose which affected the pressure in the main air reservoir 32 Whether the agreed pre-existing leak on the retarder valve would have caused a further reduction in air pressure and a consequent loss of braking performance. 34 Whether the extent to which the park brake was out of adjustment was significant and would have removed the capacity of the park brake to hold stationary the loaded truck on the haul road and would provide no braking force in the event of an emergency. 36 Whether because of equipment defects at the time of the accident only three of the disc brakes were working to their design capacity and the performance of those three brakes was reduced due to the air leaks in the braking system. 38 Whether on the day of the accident, had the engine failed for any reason while descending, the air compressor would have ceased to operate, the retarder would have disengaged, and within a very short period the air pressure in the braking system would have dropped to a point where the brakes could not bring the truck to a halt. 40 Did the engine stop? 41 Why did the engine stop? 49 3. The truck's steering - particular B 61 Whether the Terex maintenance manual states that nitrogen gas pressure can be checked using a simple gauge mechanism. 61 Whether no checks of the nitrogen gas pressure were conducted after March 2004 62 Whether there was a test which operators could use to test the operation of the steering accumulator that did not involve using any device; namely, by turning the steering wheel in both directions after the engine had been turned off. 63 Whether at the time of the accident the emergency steering accumulator on the truck was not functional as it contained no nitrogen gas. 64 Whether the loss of gas was due to the absence of maintenance and internal scoring of the accumulator cylinder and the piston 66 Whether Mr Smith either was not informed of the means by which the operating condition of the steering accumulator could be tested, or he failed to carry out those tests. 66 Whether other operators of the truck who operated it in the weeks prior to the accident were either not informed of the means by which the continued operation of the steering accumulator could be tested or did not actually conduct that test. 68 4. Darren Smith 69 Whether Mr Smith suffered multiple injuries that would have rapidly and inevitably lead to death 69 5. Sequence of Events 70 Whether the retarder disengaged while the truck was descending the haul road and whether this did not occur because the truck engine overrevved or because of oil overheating. 70 Whether the blue mark on the left hand rear disc was caused by the brake being superheated by its application prior to the truck becoming airborne. 71 Whether since the brakes were applied while the truck was descending it follows that Mr Smith was not consciously or unconsciously accelerating and by so doing deactivating the retarder since he could not have been both braking and accelerating. 71 Whether the engine stopped while Mr Smith was descending the haul road immediately before the accident. 71 Whether there was damage to the radiator and radiator fan consistent with the engine having stopped prior to the impact on the embankment. 72 Whether the most likely explanation for why the engine stopped was that it ran out of fuel, or because a wire leading to the emergency stop switch was arcing on the hole while the wire went through. 72 Whether upon the retarder disengaging the truck was in a runaway condition and as a consequence of the engine stopping had no effective steering (because the accumulator was not functional). 72 6. Pre-start check sheets - Particular C 73 Whether Hunter Quarries failed to take steps sufficient to ensure operators undertook daily pre-start check sheets on each occasion that they drove Terex trucks 73 Whether completion of the pre-start checklist on the day of the accident would (or should) have identified the following additional defect: the loss of air pressure in the air circuit 74 7. Maintenance of the truck - Particular D 75 Whether the defendants either knew that Mr Taylor was not doing maintenance in accordance with the truck maintenance guidelines and requirements, or failed to take appropriate steps to check what maintenance was being carried out 76 Summary of disputed facts established beyond reasonable doubt 78 Other findings made about matters in dispute 81 D. Nature and quality of the offences 81 E. Consequences of breaches of the 2000 Act 89 F. Conduct of Mr Smith 90 G. Reasonable foreseeability of the risk to safety 92 H. Remedial measures available 96 I. General and specific deterrence 97 J. Systems of work pre-accident 99 K. Post-accident changes 101 L. Pleas of guilty 103 M. Prior record 105 N. Co-operation and assistance 107 O. Contrition 107 P. Capacity to pay 107 Q. Exercise of discretion under s 10 108 R. Penalty 109 S. Victim Impact Statements 110 T. Orders 114 A. Introduction 1 Hunter Quarries Pty Limited pleaded guilty to an offence under s 8(1) of the Occupational Health and Safety Act 2000 (2000 Act). At the time of the offence it owned and operated the Karuah Quarry at which material for use in the construction industry, principally to be used as gravel for road building and concrete mix, was extracted. Hunter Quarries also owned the buildings, fixed plant and equipment at the quarry, including two Terex TA30 off-road dump trucks known as T27 and T28 which were operated at the quarry. 2 Richard Alexanda Badior pleaded guilty to an offence under s 8(1) and s 26(1) of the 2000 Act. Mr Badior was, at the time of the offence, a director of Hunter Quarries and concerned, in particular, in the management and operation of Karuah Quarry as quarry manager. He also held a production manager's permit issued under the Mines Inspection Act 1901. 3 The charges against both defendants are based on the same facts. They each set out four discrete allegations against Hunter Quarries. Each set of four allegations constitutes one offence against each defendant. The four allegations have been particularised in each charge as follows: A. failure to ensure that the premises controlled by the Defendant, being Karuah Quarry, were safe and without risk to health, in particular by failing to ensure that the haul road was constructed in a manner that was safe. The haul road was unsafe in that: i) it did not have adequate continuous berms or other measures along the side of the road, with some berms being less in height than half that of the Terex truck TA30 wheel height. ii) its design was unsafe given the grade of the haul road at the point where it turned and the absence of berms or adequate berms in that area. B. failure to ensure that the plant provided for the use by Darren Smith, at Karuah Quarry, was safe and without risks to health, namely a Terex TA30 off-road dump truck known as the 'Terex Truck 28', in particular, by failing to ensure that in respect of that truck: i) the braking system was not defective; ii) the steering system was not defective; iii) a competent person was retained to service the truck who could and did periodically test safety critical functions such as braking, steering, alarms and warning systems and who had the capability to identify safety critical defects so as to ensure that repairs were carried out to maintain the truck in a safe working condition. C. failure to provide such information, instruction, training and supervision as was necessary to ensure employees' health and safety at work, in particular: i) by failing to ensure that pre-start checklists were always completed, in particular those that monitored the effectiveness of the braking system and the effectiveness of the steering system. D. failure to ensure that its system of work and the working environment of the employees, were safe and without risks to health, in particular: i) by failing to have an adequate maintenance management system for the Terex 28 Truck to ensure that defects were identified and necessary maintenance work was completed. As a result of the said failures Darren Smith's safety was placed at risk. B. Agreed Facts 4 The factual background about which there has been no dispute has been set out in a document headed Agreed Facts. It records that at about 4:15pm on Tuesday, 14 June 2005, Mr Smith, an employee of Hunter Quarries, was found deceased on an embankment face after the truck he was driving down the haul road at the quarry went over the embankment. 5 I have attempted to extract from the Agreed Facts, the matters relevant to each of the four allegations particularised in the two charges. Those matters are set out below. The haul road and embankment 6 Material was extracted at the quarry from an area referred to as a bench. The process of extraction involved drilling and blasting at the extraction point in order to break up rock, gravel and overburden which was then loaded by an excavator into an off-road dump truck. On 14 June 2005, material was being excavated from Bench No 3 and Bench No 4. Bench No 4 was located at the top of the quarry. Bench No 3 was located closer to the processing plant. 7 The haul road, approximately 400 metres long, ran from Bench No 4 to the processing plant at a hardstand area which was located at a lower elevation. A Minerals Industry Safety Handbook (the Handbook), published by the NSW Department of Mineral Resources in 2002, was designed to be used by mines, such as quarries, during the development stage or when operating practices were being reviewed. It was intended to be used by mines to assess risks, develop risk controls, and when implementing or reviewing workplace practices and procedures. With regard to haulage roads, the Handbook stated that unless designed for specific tasks, and taking into account the nature of the travel way and braking system, ordinary trackless wheeled vehicles should be limited to a gradient of 1 in 10 (that is, 10 per cent) when hauling downhill (section 5.11.5.5). 8 Bench No 4 was located at a height of about 47.5 metres above the crushing station. Bench No 3 was about 11 metres below Bench No 4. The haul road had an average gradient of 1 in 5 (20 per cent) with some sections being almost 1 in 4 (25 per cent). On the haul road, at a point after Bench No 3 on the descent, there was a bend to the left. The distance between the bend and Bench No 4 was about chainage 105 (or 105 metres). From about chainage 145 to chainage 170 the road was relatively straight before again turning to the left at about chainage 170. The gradient of the haul road through most of that second bend was about 1 in 5. 9 Berms (also known as bunds or windrows) were barriers used at the quarry. They had two purposes. First, when constructed along the edge of a haul road they were designed to absorb the energy of a runaway vehicle and to prevent the vehicle from leaving the road. Secondly, when placed at a tip head, they were designed to prevent a truck from backing over the face of the quarry when tipping. 10 The Handbook recommended that berms be constructed at a minimum height of half a haul truck wheel height on haulage roads. The Handbook also recommended (at section 5.11.5.5) that: Berms higher than axle height should be used in more critical areas such as steep grades and sharp curves. 11 The haul road at the Karuah Quarry did not have adequate continuous berms or other measures along the side of the haul road. Some of the berms were less than the recommended height in the Handbook. On the right-hand side of the haul road, in certain places, the berms were not continuous. 12 At about chainage 180, from Bench No 4, was an embankment area which formed a flat area adjacent to the haul road. This area was used primarily to dump large rocks which were pushed over the side of the embankment by a loader. Some concrete blocks formed a cluster on this embankment area. These blocks were not, however, a fit substitute for berms because they lacked the requisite energy absorption characteristics of materials such as sand and soil. 13 The section of road leading down to the embankment which descended at a rate of 20 per cent required, according to the Agreed Facts, adequate measures to reduce or eliminate the obvious risk of a descending truck, out of control, being unable to negotiate the left-hand bend and crossing the short level space and plunging over the embankment. Adequate measures had not been taken, however, and the haul road accordingly had an unsafe design. The truck and its operation 14 At the time the two Terex TA30 trucks were delivered to Hunter Quarries, Australian Mobile Mining Equipment Systems and Accessories Pty Ltd (AMMESA) personnel provided some training and instruction on the trucks. Mr Smith did not receive this training. 15 The truck involved in the accident on 14 June 2005 was the Terex A30 truck number 28 (the truck). It weighed 21 tonnes when unloaded and was 3.32 metres wide. It was a six-wheel drive articulated rear-dump truck model TA30, series A775. The retardation and braking system 16 The truck retardation and braking systems consisted of the following: (a) a hydraulic transmission retarder as the primary form of vehicle retardation when the truck was loaded and descending steep grades; (b) a service brake system, being a disc and calliper-type brake on each of the six wheels, which required both air and hydraulic pressure to operate. The service brake system was designed to slow the truck in conjunction with the transmission retarder and to be the primary braking system should there be a failure of the transmission retarder system at any operating speed. The service brake system was meant to be capable of bringing the truck to a complete halt at all speeds independently of the operation of the transmission retarder on any grade less than 1:4 (25 per cent); (c) a park brake, used to hold a truck in a stationary position. 17 The transmission retarder was designed to disengage automatically when either the engine speed exceeded 2,500 rpm or when the engine speed dropped below 1,250 rpm. When the retarder was disengaged, the truck would be in a potentially runaway condition and reliant upon its brakes for any retardation. 18 When engaged, the retarder system operated to slow the truck. Due to the truck's low gearing it was possible to bring it to almost a complete stop without using the service brakes. Because of this facility, the operators of the truck, prior to the accident of 14 June 2005, would rarely have had to use the service brakes while descending the haul road. 19 The service brakes consisted of: (a) two separate brake circuits, one for the front two wheels and one for the rear four wheels; (b) a pressure converter on each brake circuit ('an intensifier') which delivered pressurised hydraulic fluid to the six brake callipers. The hydraulic brake force was directly proportional to the air pressure at the intensifier; and (c) one air reservoir for each brake circuit drawing pressure from a common main air reservoir. 20 The braking system air pressure was charged by start-up of the engine, which drove a pump that generated pressure. That pressure was stored in a main pressure tank, or reservoir, from where the front and rear brake circuits (and other truck systems) were pressurised. The air pressure was then transmitted to a hydraulic system through the two intensifiers, which built up the hydraulic pressure by a factor of about 23; from about 105 psi (pounds per square inch) to 2,400 psi. 21 This system, termed an air-over-hydraulic braking system, delivered the power-assisted force necessary to arrest heavy vehicles. If no pressure was present in either or both the air and hydraulic systems, depression of the foot brake had no effect. 22 The operation of the system would be impaired by the existence of air leaks anywhere within it. When the engine was running the air compressor pumped pressure into the system which according to the Agreed Facts, may or may not exceed the rate of loss of pressure. However, when the engine stopped, the air pressure that remained available to operate the system was provided by the primary and the two circuit pressure tanks, which, in a leak-free system, permitted normal operation of the brakes for some minutes, considered ample time to bring the vehicle safely to a halt. Each depression of the foot brake utilised part of the available air pressure reserve. That reserve time would shorten, and the pressure available would diminish, as air escaped under pressure through any points where the system was leaking. 23 The service and emergency brakes relied for their operation upon the integrity of the air and hydraulic pressure systems. Service brakes were applied by the application of the operator's foot pedal. Emergency brakes could be applied by a lever in the cabin. The emergency brakes would automatically activate when the air pressure in the braking system dropped to a certain level. According to the Terex maintenance manual, that level was 45 psi, although later testing demonstrated that it was in fact 30 psi. 24 On 28 June 2005, the truck was removed from the quarry and transported by low loader to a workshop owned by Gough & Gilmour Pty Ltd. There it was examined by Ronald Francis Lyle Ainslie, a senior manager employed by Gough & Gilmour. Mr Ainslie's examination revealed that at the time of the accident on 14 June 2005, the truck had a number of equipment failures which affected the ability of the service and emergency brakes to stop the truck. These included a pre-existing oil leak on the right-hand centre wheel axle bearing that permitted contamination by a build-up of oil on the wheel rim, brake pads, the brake calliper and the brake disc. According to Mr Ainslie the oil leak caused a reduction in the coefficient of friction between the brake pad and brake disc, causing a loss of braking performance on that wheel. 25 The consequences of the pre-existing air leak were that if the air compressor failed or ceased to operate (for example, when the engine stopped) the air available for emergency operation would be less than should be available, and fewer applications of the brakes (both by the driver and by the application of the automatic emergency brake function) would be permitted after the air supply input ceased. 26 Other equipment factors found to affect the ability of the service and emergency brakes to stop the truck at the time of the accident were the presence of a pre-existing air leak on the retarder valve and the faulty park brake which was out of adjustment. In addition, the examination found a pre-existing oil seal failure in the front brake pressure intensifier which allowed brake fluid to escape over time and air to enter the front brake hydraulic circuit. Steering 27 The truck's steering was hydraulically operated via the movement of two hydraulic rams which articulated the two front wheels. A hydraulic pump provided hydraulic pressure to the steering system. 28 An emergency steering capability was part of the steering system. Its purpose was to ensure that the truck could be steered while being brought to rest safely in the event of a loss of hydraulic pressure due to a pump failure or other emergency. 29 The steering accumulator provided a reserve of hydraulic pressure for emergency steering. It contained a piston inside a hydraulic cylinder with nitrogen gas on one side of the piston and hydraulic fluid on the other side. Hydraulic steering pressure built up to 2,200 psi, charging the steering system and compressing the nitrogen from 880 psi to 2,200 psi within the cylinder. When hydraulic pressure was lost due to a power failure or other emergency the pressured nitrogen pushed the piston down and maintained pressure in the hydraulic system in order to operate the steering for some minutes. The steering accumulator would only work if there was nitrogen gas in the accumulator. When functioning normally it provided a steering reserve of 1.5 turns of the wheels lock to lock. This equated to six full 360 degree turns of the steering wheel. 30 At the time of the accident, the truck's cab contained an operator's manual which was for a different and later model TA30 truck and one in which the steering accumulator had been replaced by a different mechanism. The manual did not therefore contain an illustration of the accumulator or the relevant warnings about the need to dissipate, and the manner of dissipating, its stored pressure. 31 In the cabin of the truck was a low steering hydraulic pressure warning light. When this was lit it indicated low hydraulic steering pressure. When the accident occurred on 14 June 2005, this warning light was not working. A pre-existing broken wire on the low steering pressure warning sender caused the truck's warning system to fail to signal low steering pressure. 32 Because the accumulator was not functional on 14 June 2005, the truck could not be steered in the event that the primary hydraulic pressure failed for any reason, such as the truck stopping. Darren Smith's fatal accident 33 Mr Smith was employed as a plant operator at Karuah Quarry. He commenced employment in February 2005. 34 On 14 June 2005, Mr Smith commenced work at about 6.30am. He operated the truck throughout the day transporting material from both Bench No 3 and Bench No 4 to lower levels of the quarry. 35 Immediately before the accident, Mr Smith drove the truck to either Bench No 3 or Bench No 4 where he backed it up for loading with overburden, consisting of clay, earth and rock. After the truck was loaded, at almost 4.15pm, Mr Smith commenced driving the loaded truck down the haul road in the direction of the crushing plant, en route passing another truck waiting its turn to be loaded. 36 On the descent down the haul road, the truck left the road at a left-hand curve. It crossed the flat area at the top of the embankment and struck some concrete blocks. It then travelled over the embankment, striking it and rolling two or three times before coming to rest at the bottom of the embankment, 20 metres below. 37 The point where the truck left the haul road was about 180 metres distance from Bench No 4 and about 32.6 metres below Bench No 4. From Bench No 3, the distance to the same point was about 105 metres and about 21.2 metres below Bench No. 3. 38 Mr Smith's body was found on the side of the embankment. It appears that he was thrown from the truck through the front windscreen. It also appears that he had not been wearing a seat belt at the time. Maintenance of the truck 39 In late 2001, Hunter Quarries entered into an informal arrangement with Marine and Earthmoving Maintenance Services Pty Ltd (MEMS) based in Medowie, New South Wales, to carry out repairs and maintenance to its plant on an on-call basis. Under the arrangement, repairs to and services of the Terex trucks were carried out by MEMS. 40 From March 2004, Mr Boyd Taylor of B&S Plant Repairs was engaged by Hunter Quarries to service and repair the Terex trucks. The arrangement was not subject to a formal contract. Mr Taylor, under the arrangement, attended the quarry when requested to undertake particular tasks. His records showed that the last four services he performed on the truck were all 250 hour services. The last such service was performed one week before the accident. 41 Mr Taylor had no previous experience in servicing Terex off-road dump trucks. He did not possess the knowledge or experience to adequately service the truck or identify defects requiring repair. He was not familiar with the working of the steering accumulator and did not know that it was designed to contain compressed nitrogen gas to enable the truck to be steered in an emergency. Hunter Quarries was aware that Mr Taylor had not previously worked on Terex off-road dump trucks. 42 According to the Agreed Facts, when Mr Taylor performed the last 250 hour service on the truck a week before the accident, the following defects should have been identified: (a) the failure of the seal in the front brake converter/intensifier. That would have been identified by monitoring loss of brake fluid and cleaning the converter/intensifier, as was required by the manufacturer's maintenance chart; (b) the losses of air pressure in the air circuit. These would have been identified by turning the engine off, checking for loss of pressure, and testing the function of the retarder valve; (c) the loss of gas pressure in the steering accumulator. That would have been identified by carrying out a steering shutdown test or measuring the gas pressure in accordance with the maintenance manual; (d) the broken warning light on the steering circuit. That would have been identified by checking the operation of the warning systems; (e) the loss of service brake performance. That would have been identified by carrying out a brake test in accordance with the manual; (f) the oil leak from the right-hand wheel axle. That would have been identified by visual inspection and checking the brake pads in accordance with the 250 hour service in the manual; (g) the park brake being out of adjustment. That would have been identified by visual inspection or routine adjustment of the brake in accordance with the manual or by testing for efficiency in the manner described in the relevant Operation's Manual. Pre-start checks 43 Karuah Quarry had a Mine Safety Management Plan. It directed that daily inspections of plant and equipment be carried out by the operator and recorded in a checklist. 44 The Handbook stated, in respect of haul trucks, that operators should: "conduct a safety check of the truck and test systems before driving. Use a buddy system to test lights." 45 The Terex truck operator's manual stated that daily 10-hour checks should be made of the nitrogen gas pressure in the steering accumulator. 46 There were printed checklists available to be used by operators to record the daily inspection of the truck. A book of checklists was found in the truck after the accident. 47 Mr Smith did not complete a pre-start checklist on the day of the accident. Mr Badior was aware that Mr Smith had omitted on prior occasions to complete pre-start checks. He had spoken to Mr Smith about his failure to fill in the pre-start checks in April 2005 but no follow-up action had been taken to ensure it was done. The pre-start sheets recorded only one checklist having been completed by Mr Smith on 4 May 2005. 48 Completion of the pre-start checklist on the day of the accident would have, or should have, identified the following defects: (a) the loss of brake fluid in the front brake fluid reservoir. This would have been identified by checking the fluid level; (b) the loss of gas pressure in the steering accumulator. This would have been identified by carrying out a steering shutdown test or by coupling the system to an appropriate gauge; (c) the broken warning light on the steering circuit. This would have been identified by noticing its failure to illuminate when the ignition was turned on; (d) the loss of service brake performance. This would have been identified by carrying out a brake test; (e) the oil leak from the right-hand centre wheel. This would have been identified by visual inspection; (f) the park brake was out of adjustment. This would have been identified by carrying out a park brake test, by visual inspection of the park brake mechanism, or by investigating the cause of the malfunctioning warning light. C. Facts in dispute 49 The hearing in these matters commenced on 7 October 2008. On 9 October 2008 both defendants entered pleas of guilty to amended charges. The sentence hearings were heard over a further 11 days and were directed to a determination of factual matters in dispute between the parties. 50 On 20 October 2008 the prosecution tendered a document entitled "Prosecutor's Facts for Proof Version 5 17 October 2008". The Court was informed that the document (which became Exhibit 7) contained factual matters not in dispute which were highlighted in yellow and factual matters in dispute which were not highlighted. At the same time, a further document was handed up by the prosecution, but not tendered, which was said to contain only factual matters in dispute between the parties, extracted from Exhibit 7. Two days later on 22 October 2008 the prosecution tendered another document entitled Agreed Facts. This document (which became Exhibit 8A) was said to be a further refining of the matters in dispute. 51 On 23 March 2009 the prosecution attached to written submissions in reply another document entitled "Facts Put in Issue". The Court was informed that the document represented the starting point for its consideration of all remaining factual matters in dispute between the parties. On 23 April 2009, after the sentence proceedings had concluded, the defendants forwarded a document to the Court entitled "Defendants' Response to Facts Put in Issue". In that response the defendants expressed disagreement with the prosecution's characterisation of the outstanding issues in dispute. 52 The Court proposes to consider and determine the factual matters in dispute by reference to Exhibits 7, 8A, the prosecution's document entitled Facts Put in Issue and the defendants' document headed Defendants' Response to Facts Put in Issue. Exhibit 7, despite having been superseded by Exhibit 8A, remains relevant because it is the document relied upon by the defendants in their written response to the Facts Put in Issue. For ease of reference the matters in dispute will be considered under the following categories to which they relate: 1. The haul road - particular A 2. The truck's brakes - particular B 3. The truck's steering - particular B 4. Darren Smith 5. Sequence of events 6. Pre-start check sheets - particular C 7. Maintenance of the truck - particular D 1. The haul road - particular A Whether Hunter Quarries were in possession and aware of the contents of the Handbook prior to 14 June 2005. 53 Mr Badior in cross-examination was asked whether he accepted a proposition that at sharp bends in the haul road there was a need for berms "of wheel height" as opposed to a half wheel height. His response was, "That's what our book says yeah". He was not asked to identify with further precision the book to which he made reference. Nevertheless the prosecution contended that Mr Badior's evidence provided proof that Hunter Quarries was in possession of the Handbook and was aware of its contents prior to 14 June 2005. According to the defendants Mr Badior was not referring to the Handbook but to another publication, namely the Minerals Safety Guidelines. 54 Further evidence on the issue appeared in the examination in chief of Peter Alsina Sunol. Mr Sunol, an inspector of mechanical engineering employed by the NSW Department of Primary Industries, provided a mechanical engineering report into the incident of 14 June 2005 at the request of the prosecutor. In oral evidence Mr Sunol told the Court that while at the quarry he went to an office he understood to be Mr Badior's office and saw the Handbook there. He said it was a book he was already familiar with. He was shown an extract of the Minerals Industry Safety Handbook Edition 1, July 2002, and identified it by saying, "yes, that is the front cover of it." 55 In the extract from the Handbook under the heading Haulage Roads appears the following passage: Important considerations for keeping haul roads safe include: · adequate berms or guardrails on elevated roadways where there is a danger of a vehicle running off the road. Berms higher than axle-height should be used in more critical areas such as steep grades and sharp curves: 56 An extract from the Guidelines for Safe Mining, July 2000 (the predecessor publication to the Handbook) tendered by the prosecutor during the sentencing proceedings sets out in identical terms the above passage taken from the Handbook concerning berms on the haul road. 57 Mr Sunol's evidence that he was familiar with the Handbook and had seen it at the quarry on the day of the accident in an office he understood to belong to Mr Badior, was unchallenged according to the prosecutor. His unchallenged evidence enables the Court to conclude beyond reasonable doubt that the Handbook was in the possession of Hunter Quarries on 14 June 2005. There was no dispute that Hunter Quarries was aware of the contents of the Handbook. Whether the majority of the berms were not at or above a height of half the wheel height of the Terex 28 Truck. Whether "almost none" of the berms were that height. 58 According to a report prepared by Steve Franklin, principal consultant for KRC Mining Consultants, none of the berms on the haul road met the minimum standard set out in the Guidelines for Safe Mining which he said recommends a minimum height for berms of half a haul truck wheel height on exposed haul road edges (a height of 0.85 metres). Mr Franklin visited the quarry on 23 June 2005 for the purposes of preparing his report. During the visit he walked the operating haul roads and benches in order to inspect the haul road on which the accident occurred and to review the operating benches and other haul roads in the vicinity to gain an understanding of operating practices at the site. In particular he reviewed a document which purportedly sets out cross sections of the haul road on which the accident occurred. Mr Franklin in his report also prepared a graph of the berms and their respective heights at various chainage points along the haul road. From that graph he concluded (based on a standard berm height of 0.85 metres) that none of the berms reviewed met minimum standards. 59 Neither the contents of the graph nor the information on which those contents were based were the subject of challenge. Mr Franklin was not required for cross-examination. It is therefore open to the Court to accept Mr Franklin's conclusion on the issue. Based on this material I find beyond reasonable doubt that at the time of the accident the majority of the berms on the haul road were not at or above the recommended height as set out in the Guidelines for Safe Mining (which is in the same terms as appears in the Handbook). 60 Before leaving this issue I should note that the recommended height for berms on haul roads set out in both the Handbook and the Guidelines for Safe Mining (and adopted as a guide by Mr Franklin) was the subject of some discussion in the draft report of Dr George Rechnitzer. The draft report was prepared on behalf of the defendants but was tendered by the prosecution during the proceedings. Dr Rechnitzer is an engineer specialising in the application of the engineering sciences to safety matters. At the time of the draft report he was a partner in DV Experts International Pty Ltd, a corporation which specialises in forensic engineering, accident investigation reconstruction, failure analysis and safety solutions. According to him the recommended height for berms on a haul road (at least axle high to the vehicle) is too low to stop a loaded runaway haul truck. Estimating the truck to contain a loaded mass of 50 tonnes (which includes its Tare mass) Dr Rechnitzer concluded that an effective berm would need to be at least 1.6 metres higher than the front bumper level of the haul truck, present a reasonable flat face to the truck, and be about 3 metres wide at the base and 2 metres wide at the top, in order to arrest its uncontrolled descent. The berms even at axle height therefore would have been inadequate on Dr Rechnitzer's analysis. Whether there were more parts of the haul road where there were no berms (that is, they were not continuous). 61 It was Mr Franklin's conclusion in his report that parts of the haul road did not contain berms. This appears to be disputed by the defendants on the basis that in the area where the truck left the embankment a berm, which was located behind a cluster of concrete blocks, was displaced. 62 The evidence in support of this is said to be found in the cross-examination of Craig Steven Warden who was a loader operator at the quarry at the time of the accident. Mr Warden witnessed the truck descending the haul road at a point just before the embankment and when it left the embankment and went over the edge. His account of these events was as follows: Q. On 14 June 2005, being the date when Mr Smith had his accident, can you tell us about what time you were aware something had happened to him? A. After 4 o'clock, towards the end of the shift, I was leading a dump truck near conveyor 7 and I seen Brian and Alex near the plant and they were looking up at the hill and I never thought anything of it and just looked up there myself and that's when I seen the accident happen. Q. What did you see when you looked up? A. Just the dump truck before it went through the embankment, that's where I saw from. Q. At the time when you saw it, as you said, going through the embankment, what did you see happen in relation to the truck and the embankment? A. Where he went through the embankment there were concrete blocks in front of the embankment as well. So the truck actually pushed the concrete blocks through the embankment with rocks going out from the truck as it went through from the embankment, which launched it into the air. Q. You said rocks? A. Rocks, they're made of the bund, like the bund wall; we sometimes put rocks or material that's not required as a bund along any face. Q. You saw it push the concrete blocks? A. Yeah. There were concrete blocks up in front of where Darren went over. Q. In which direction did they push from? A. Directly straight out in front of them. Q. What do you understand by "bund"? What is that? A. In a mining site all roads and face have to have a minimum bund height, so we put a bund wall, which is to protect anyone from going over the embankment. Q. What did the truck do with respect to the bund wall there? A. It went through the bund and sort of launched into the air and nose dived into an embankment underneath where he went over, nose dived into the embankment. Q. When you saw this happen did you see anything thrown up? A. Rocks and dirt and it ploughed - like the trucks have got a bumper bar on the front of them - it ploughed through the rocks and the concrete barrier and it pushed it out over the edge. Q. Then what happened to the truck? A. It actually launched into the air and it nose dived; it went out into the air then nose dived, because the bank actually went with a step in it, and then down to the bottom ledge. When the truck has done through the embankment it has gone over like, then nose dived directly into the next bank below it. 63 According to the Agreed Facts the truck went over the embankment at about chainage 180 measured from Bench 4. Immediately before, it had left the haul road at a left hand curve and then crossed the flat area at the top of the embankment. According to Mr Franklin in the area where the truck went over the edge of the embankment there was a low berm and some concrete blocks. It was an agreed fact that the embankment area (the flat area) adjacent to the haul road was used to dump material, mainly large rocks which were pushed over the side of the embankment by a loader. It was also an agreed fact that in the embankment area (at the time of the accident) was a cluster of concrete blocks which were not fit for the purpose of bunding because they did not have the energy absorption characteristics of the kind possessed by sand or soil, for example. Mr Franklin's report sets out an extract from the Haul Road Inspection Handbook which says on the subject of concrete blocks being used as berms: "...Sometimes a continuous row of boulders is used to form a berm. When a piece of equipment contacts a boulder berm, the restraint comes from the frictional forces involved in sliding the boulder ahead of the vehicle. So, to be effective, the boulders cannot be placed right at the edge of the drop off. There has to be a distance available for the vehicle to push the boulders. This distance will depend on the size of the boulders and the size and speed of the truck. To account for this distance, additional road width is required..." 64 Mr Warden in his evidence distinguished between rocks and other material which he described as "made of the bund, like the bund wall... not required as a bund" and the concrete blocks which he said the truck pushed over the embankment on its descent. He appeared to describe the concrete blocks as berms when he said in his evidence that the truck "went through the bund". 65 The effect of Mr Franklin's evidence and Mr Warden's evidence suggests that in the embankment area there was material which could meet the description of a berm, but which was either too low or otherwise inadequate because it lacked the necessary energy absorption characteristics required for adequate bunding (the concrete blocks). It may be concluded from this evidence that at least in the area of the embankment, there existed, at the time of the accident, bunding, although it was inadequate. This is not to say that on certain parts of the haul road there were no berms (which were not continuous), a fact upon which the prosecutor has sought to rely. The evidence which establishes this fact, beyond reasonable doubt, is found in Mr Franklin's report where he records that he observed while walking the haul road no berm evident in the tipping area, and in the executive summary part of the report where he says, with regard to the provision of berms, that they were, "low or non-existent generally". 2. The truck's brakes - particular B Whether the loss of braking performance on the right hand centre wheel, caused by a pre-existing oil leak, was not less than 70 per cent. 66 Mr Sunol in his report concluded that the oil mixture on the right hand centre (RHC) wheel, which he said had been present prior to the accident, would have reduced the effectiveness of the braking performance of the RHC wheel. Based on a number of calculations he derived a figure of 70 per cent friction reduction for moulded/integrated asbestos on steel, when the surface is wet. Using the same calculations he postulated that there would be in effect a 70 per cent reduction in the actual brake force for the same hydraulic pressure, if and assuming the brake pads and disc were manufactured from the same materials. He also said that the figure of 70 per cent, "cannot be taken as absolute value for the actual braking system on the RHC wheel of truck 28 at the time of the incident as I am not aware of the lubricant or brake pad material properties". 67 Shane Richardson a partner in DV Experts International and a mechanical engineer with experience in accident reconstruction, was cross-examined by the prosecution on the issue. He accepted a proposition put to him by the prosecution that "the right hand centre brake was virtually useless because of the gunk all over it". In his report, he had questioned the validity of Mr Sunol's conclusion that the effectiveness of the RHC wheel brake on the truck would be reduced by 70 per cent, reliant as it was on an estimate of frictional properties. 68 Gerry Lewis, an engineering manager employed by Australian Brake Controls Pty Ltd (ABC), conducted tests at the ABC workshop on the centre right disc brake rotor. He found: Condition of disc brake pad contact area - unacceptable. Large amounts of oil/grease on the rotor. Highly unlikely that this brake would have been contributing to the retardation of the vehicle. The coefficient of friction between rotor and disc pad would have been reduced greatly with the covering of lubricating material/s. 69 Later in his report he concluded with regard to the effectiveness of the RHC brake: the disc fitted to the centre right hand side of the vehicle was covered in a heavy oil and grease mixture, and it is my opinion that it was not possible for this brake to have contributed to the required braking force for the vehicle. 70 In oral evidence Mr Lewis explained that oil sliding on metal "has zero co-efficient of friction". The following evidence was then adduced: Q. In lay terms it destroys the efficiency? A. Yes. Q. To a point where it's not functioning? A. Not functioning and cannot recover - once oil is into those pads, the friction material, it cannot recover. Q. You mean it won't be burned off no matter how many times you apply the brakes, is that correct? A. That's correct. 71 Given that Mr Sunol's figure of 70 per cent was not based on the physical condition of the RHC wheel at the time of the accident, I am not satisfied beyond reasonable doubt that the loss of braking performance on the RHC wheel was not less than 70 per cent. There appears to be no dispute that the presence of the oil mixture (which Mr Richardson described in his report as a mixture of oil/grease and grit) reduced the effectiveness of the braking performance of the RHC wheel. Given Mr Richardson's concession that the RHC brake was "virtually useless", and the evidence of Mr Lewis that it was "not possible" for it to have provided effective retardation, I conclude, beyond reasonable doubt, that the presence of the oil mixture on the RHC brake precluded it from functioning effectively. Whether the front brake reservoir was empty before the incident rendering the front brakes effectively inoperable. 72 On 15 July 2005 Mr Sunol inspected both the front and rear hydraulic fluid reservoirs at Gough & Gilmour. With regard to the front brake fluid reservoir he found it empty and dry. He saw no signs of a broken hydraulic line which might have otherwise accounted for the loss of hydraulic brake fluid. He observed that the diaphragm on the brake reservoir cap had been pushed down or sucked into the reservoir. He concluded from this fact that there had been an internal leak in the brakes hydraulic system downstream of the centre pipe (situated at the bottom of the reservoir). This leak, he said, had drained the reservoir of brake fluid. It meant that the leak had not been external through the reservoir or its cap. This was because, as fluid escapes through the centre discharge pipe, atmospheric pressure pushes the diaphragm in to fill the void and space, where the fluid was. 73 Mr Sunol made two observations which he said discounted the possibility that the brake fluid had run out when the truck was on its side after it came to rest at the bottom of the embankment. These were: (a) the absence of any brake fluid in the labyrinth seal between the reservoir lip and the rubber diaphragm; and (b) the absence of any fluid left in the reservoir. Any remaining brake fluid in the reservoir would have collected in the cap and when the truck was righted (two weeks later) the fluid remaining should have been contained in the reservoir. 74 A further indication that the brake fluid had not run out when the truck was on its side following the accident, according to Mr Sunol was that the rear brake fluid reservoir on the truck was full when he inspected it at the quarry, on 15 July 2005. In addition, Mr Sunol, under cross-examination said he had observed no signs of damage to the front brake reservoir as a result of the incident. 75 Mr Sunol's finding that the front brake reservoir was empty at the time of the accident received some support from Mr Ainslie who was present on 28 June 2005 when the truck was delivered to the workshop of Gough & Gilmour for the purposes of examination by Mr Sunol and others. Mr Ainslie also examined the truck with Mr Sunol and prepared his own report. With regard to the level of the fluid in the front brake reservoir his report contained the following finding: The front brake reservoir was empty from brake fluid. The front brake pressure converter was bypassing brake fluid into the air chamber side of the pressure converter. The front brakes would not have been functioning according to the manufacturer's specifications. 76 Mr Ainslie was cross-examined as to precisely when the front brake reservoir may have been emptied of fluid. The relevant exchange, extracted from the transcript, is reproduced below: Q. You cannot discount the front brake reservoir may have been emptied as a result of the accident and having been lying on its side for about two weeks? A. Yes I can. Q. How? A. The can was impacted. The sealing was intact and no marks of any fluid leak through the cap and the rubber stop had come down and was, the seal when the brakes deployed gets used, that is designed to retract into the reservoir as the deployed goes out. 77 This evidence, as I apprehend it, expressed agreement with Mr Sunol's findings that the fluid in the front brake reservoir had emptied out prior to the accident by means of an internal leak. 78 Mr Sunol's conclusions on the issue, were the subject of challenge in the report of Russell Smith, a mechanical engineer and manager and director of WBM Pty Ltd. Mr Russell Smith's examination was undertaken by reference to photographs depicting the front brake reservoir of the truck. He observed from one photograph of the cap retainer clip on the front brake reservoir that it appeared to be "deformed, distorted or dislodged". He opined that this set of conditions could cause a significant loss of fluid while the truck was on its side (that is after the accident) but a negligible loss while the truck was upright (that is prior to the accident). 79 Mr Russell Smith also presented an alternative theory as to why the diaphragm in the front brake reservoir was inverted when Mr Sunol examined it. Mr Sunol had concluded from this fact that the fluid leak had been internal. According to Mr Russell Smith, the inverted position of the diaphragm could also have been the result of an external leak (sustained after the accident) if either of two events had occurred: (i) there was a small breach or penetration in the cap seal at the lowest point around the seal perimeter while the truck was on its side. As the contents leaked out and the air was unable to enter the reservoir the diaphragm was "sucked in". (ii) the reservoir cap retainer was grossly ineffective causing a larger leak leading to a high probability for a leak path to exist at the lowest point of the reservoir. This would not cause the diaphragm to invert, but when the truck was righted it is likely that the flexible rolling diaphragm simply drooped to its material least energy state (ie inverted). 80 In my view the more likely explanation for the inverted diaphragm was that provided by Mr Sunol, namely that the fluid within the reservoir leaked internally prior to the accident which caused the atmospheric pressure to push down the diaphragm. There was no evidence of a small breach or penetration in the cap seal or of the cap retainer being grossly deformed. These were assumptions made by Mr Russell Smith upon which he posited his alternative theory. There was in any event some evidence to the contrary. With regard to the assumed breach of the cap seal, Mr Ainslie's physical examination of the reservoir revealed no marks of any fluid leaks through the cap. He also said the sealing was intact, which suggests that the cap retainer (or the cap retainer clip which I take to be the same thing) was not grossly deformed such that leakage would have occurred when the truck was on its side). Unlike Mr Sunol and Mr Ainslie, Mr Russell Smith's observations were based on photographs he examined. He made no physical observations of the actual reservoir, the cap, the retainer clip, or the seal. 81 These findings do not finally dispose of the issue as to whether the reservoir was completely empty or dry prior to the accident. If the leak was internal (as I have found) and fluid escaped through the centre discharge pipe, there remained an area corresponding to a depth of some 14mm below the opening of the pipe at the bottom of the reservoir. The amount of fluid that could congregate in this area comprised, according to Mr Russell Smith, about 130ml, or half a cup. Some form of intervention other than a downwards leak would appear to be required in order for this small amount of fluid to be dispersed and for the reservoir to be completely empty. According to Mr Sunol the fluid contained in the area below the aperture or port of the centre discharge pipe had been splashed out by the continual movement of the truck while it was driven up and down the haul road prior to the accident. Mr Russell Smith in his report was prepared to concede that it was possible for some brake fluid to splash down the centre pipe as the truck moved but he thought that the amount of fluid dispersed by this mechanism was probably limited. He also suggested that the diaphragm's inverted position might fully block the centre pipe's opening thus rendering it "all but impossible" for additional fluid loss. 82 Based on this evidence I am unable to conclude beyond reasonable doubt that the front brake reservoir was completely empty or dry prior to the accident. I nevertheless conclude beyond reasonable doubt, based on the evidence, that the level of brake fluid in the reservoir, prior to the accident, was very low in that it was at least as low as the centre discharge pipe as a result of an internal leak through it, and that this very low fluid level would have rendered the front brakes effectively inoperable prior to the accident. Whether there was a pre-existing leak on the front brake air circuit from a split in the hose which affected the pressure in the main air reservoir 83 There was no issue between the parties that the subject air hose had a split. What was not agreed is when the split occurred, that is, before or at the time of the accident. 84 Mr Sunol conducted a physical examination of the split hose at Gough & Gilmour some time between 14 July 2005 and 12 August 2005. His observations of the air hose were carried out during testing of the air brake circuits. In his presence, all three air reservoirs were checked for air pressure. None of those checks recorded air pressure in any of the reservoirs. He also saw a broken air hose underneath the transmission which was replaced. With regard to the split air hose, Mr Sunol said that the split did not appear to have been as a result of the accident because: (i) it appeared to be a fatigue type split and the outer cover of hose appeared brittle and aged; (ii) the hose was in a protected position underneath the battery box; (iii) there appeared to be oil marks around the crack which indicate the crack was an in-service failure. 85 On 8 August 2005, Mr Sunol witnessed the replacement of the leaking air hose. He saw that it went from the front brake air reservoir to the front emergency relay valve. He recorded that the hose showed signs of being aged and brittle when removed which he said concurred with his initial thinking that the leak from the hose pre-dated the accident. 86 The battery which Mr Sunol said provided protection for the air hose (which lay underneath it), sat on top of the chassis rail above the front and main air tanks. According to the defendants, the battery box (and the battery) was detached when the truck went over the embankment. The fact that it became detached during the truck's plunge over the embankment does not, in my view, give rise to an inference that the split in the air hose occurred at the time of the accident. 87 In cross-examination, Mr Sunol, when shown the hose, agreed that no oil was discernible on it. His explanation for that was that it had evaporated. He also agreed that he had not conducted any tests to determine the depth of the split or whether oil and grime had been present. His conclusion that there were oil marks around the split was the result of a visual examination. 88 Mr Richardson, in a report dated 25 November 2008, commented on Mr Sunol's finding that there was a small "fatigue-type split" in the air hose. In oral evidence, he said he would have expected Mr Sunol to section the hose and pull back the flaps in order to examine whether there were any fatigue propagation cracks in the rubber in order to support his finding. Mr Richardson noted that Mr Sunol provided no detail to support the conclusion. He also questioned Mr Sunol's finding that the oil marks on the split air hose indicated that it was an in-service failure. Mr Richardson's reservations concerning the finding arose he said because of Mr Sunol's preparedness to find on the one hand that the front left-hand brake disc was covered in oil "from the incident", and on the other hand that the oil marks on the hose had occurred at some earlier time. 89 Mr Ainslie, in his report, expressed the following opinion on the split air hose: Air pressure was connected up to truck. A broken hose situated underneath the Cab on the left hand side was replaced with a new one. This break was the result of the impact at the time of the accident. A split in a hose going onto the front air tank was discovered next. Prior to replacing this hose it was decided to test the leakage as this appeared not to be a result of the accident and would have an effect on the integrity of the air system. 90 Mr Ainslie's opinion expressed in the passage extracted above from his report was that the split air hose was not a result of the accident which meant it had occurred at an earlier time and, as Mr Ainslie said, would have affected the integrity of the air system. When Mr Ainslie's opinion was challenged in cross-examination, he conceded that the split air hose "could have" occurred as a result of the accident. 91 Mr Richardson, during examination in chief, was shown the split air hose. He noted the absence of dirt and grime on the surface and said if the split was indeed a fatigue crack that had been present for a long period of time, he would have expected to have seen dirt and grime in the crack. Because there was none, he proffered the opinion that the split was more likely to have occurred at the time of the accident. Under cross-examination, however, he accepted the proposition put to him that had the air hose fractured prior to the accident then air constantly blowing through the split would have cleared it of any bits of sand and other particles. This concession effectively removed the basis of his earlier opinion. 92 In my view, Mr Sunol's evidence on the issue contains the most reliable explanation for the timing of the split in the air hose. Although Mr Sunol's conclusion, that the fracture or crack in the air hose was a fatigue-type split, was based on a visual examination, it was uncontradicted by the other evidence. I therefore find, beyond reasonable doubt, that the leak in the split air hose existed some time before the incident. It was an agreed fact that the operation of the air-over-hydraulic braking system will be (or would have been) impaired by the existence of air leaks anywhere within it. Whether the agreed pre-existing leak on the retarder valve would have caused a further reduction in air pressure and a consequent loss of braking performance. 93 The defendants' dispute with regard to this fact sought to be proved by the prosecution focuses on what is said to be the lack of testing of the loss of air pressure in the pre-existing air leak on the retarder valve as well as the lack of testing of the timeframe within which air pressure would be lost, in order to substantiate whether the leak on the retarder valve did reduce the performance of the brakes. 94 Mr Sunol examined the retarder valve during his examination and testing of the transmission on the truck. On 24 February 2006 he took the retarder valve to ABC for testing. Mr Lewis was present during the testing. Mr Lewis at that time was the engineering manager for ABC with expertise in brake mechanics, in particular the design and testing of brake systems for on-road and off-road heavy vehicles. 95 During the testing of the valve Mr Sunol observed the retarder activation spool start to move at 18 psi; and fully open at 25 psi, the minimum air pressure required to activate the transmission retarder. He also observed and heard a significant air leak internally within the spool upon its activation. Mr Sunol expressed a number of opinions as to the consequences of the air leak in the retarder valve. These were: (i) the retarder would disengage earlier upon a loss of air pressure than it otherwise would if there was no air leak (ii) there would be a loss of air pressure from the main air reservoir (iii) a higher air pressure would be required to maintain the retarder function (iv) there would be reduced retarder torque. 96 He concluded that the internal air leak in the retarder valve caused a reduced retarder torque and a reduction in air system pressure. 97 Mr Lewis conducted the testing of the retarder valve. His observations were the same as those of Mr Sunol. In addition he recorded in his report that the valve had a "large air leak at 20 psi". Mr Lewis concluded from this: In my opinion based on my testing and observation of this component, while the function of the spool appeared to be normal, the amount of compressed air that was wasted during its operation could hinder the operation of the air brake system. Although I do not have specific experience of valve spools and do not have specific knowledge of their function I am able to bring my mechanical knowledge and experience to their operation and am of the opinion following my testing and observation that air was being wasted and hindered its function. 98 The results of the testing process and the conclusions drawn from the observations made during that process enable the Court to find beyond reasonable doubt that the pre-existing leak on the retarder valve (operating from the same air pressure circuit) would have caused a further reduction in air pressure and a resultant loss of braking performance of the truck. Whether the extent to which the park brake was out of adjustment was significant and would have removed the capacity of the park brake to hold stationary the loaded truck on the haul road and would provide no braking force in the event of an emergency. 99 It was an agreed fact that the park brake was out of adjustment. The area of dispute on this issue is confined to whether it was so significantly out of adjustment that it could not hold the loaded truck stationary on the haul road and would have provided no braking force in the event of an emergency. 100 In his report Mr Sunol explained the purpose of the park brake. The park brake on the truck was a disc and calliper type brake which was connected to a spring applied actuator. Air pressure was required to release the park brake. It was located at the rear of the transmission and applied to all six wheels through the driveline. Its purpose was to hold the truck stationary on the grade. 101 Testing of the park brake's components was performed by Mr Lewis at the ABC workshop. Mr Sunol was present and took a number of photographs. He also took a number of measurements and recorded the results of the testing process. His results showed that at the time of the accident the park brake actuator's extension was 73mm from the spigot. When he observed the park brake calliper being adjusted in accordance with the recommended procedure for the truck (set out in the Terex operator's manual), he noted that the extension of the actuator should have been 12mm. When the actuator was fully extended it measured 77mm. This left a margin of 4mm which, at 73mm extension, meant, according to Mr Sunol, no brake force at all. 102 There does not appear to be any dispute that the park brake was out of adjustment in the way described by Mr Sunol, at the time of the accident. Mr Sunol concluded that it was out of adjustment for at least two weeks prior to the accident. The defendants' primary concern as I apprehend it is that a finding that the park brake was "significantly" out of adjustment (and therefore unable to hold the truck stationary and provide no braking force in an emergency) might provide a basis for a further finding by the Court that the failure to concede these matters demonstrated a lack of contrition. I accept Mr Sunol's conclusion that the park brake was out of adjustment. I find beyond reasonable doubt that it was so out of adjustment, by reason of the 73mm extension of the actuator, that it would have provided no brake force at all for the truck on the haul road (at the time of the accident). It is unnecessary to add to this finding that the park brake was "significantly" out of adjustment. The finding that the park brake would have provided no braking force for the truck on the haul road is relevant to a consideration of the objective seriousness of the offences, a matter which will be addressed later in these sentencing reasons. It is relevant to the Court's consideration of the factor of contrition that the defendants conceded that the park brake was out of adjustment. It will be taken into account, accordingly, in their favour in mitigation of penalty. Whether because of equipment defects at the time of the accident only three of the disc brakes were working to their design capacity and the performance of those three brakes was reduced due to the air leaks in the braking system. 103 I have already found that the RHC brake had a pre-existing oil leak which prevented it from functioning effectively. I have also found that the level of hydraulic fluid in the front brake fluid reservoir was so low as to render the two front brakes effectively inoperable. It was not in issue between the parties that there was a downstream leak in the front brake's hydraulic system, namely the oil seal failure in the front brake intensifier (also known as the brake converter) which caused brake fluid to escape over time and air to enter the front brake hydraulic circuit. This leak in the seal, which allowed air to mix with the brake fluid, would also have diminished the efficiency of the front brakes, prior to the accident. 104 Mr Lewis found, after testing, that the brake discs on the truck were dimensionally sound. It does not follow however, from this finding that the brakes on the truck were functioning according to their design capacity. Given the equipment defects identified above, which affected the operating capacity of the front brakes and the RHC brake, they clearly were not. I have further found that there was a pre-existing leak on the front brake air circuit from the split air hose which would have further impaired the performance of the braking system, (the consequence of the split hose being diminished air pressure reaching the intensifier) as well as a pre-existing leak on the retarder valve which caused a further reduction in air pressure and a loss of braking performance. These findings compel the conclusion beyond reasonable doubt that the performance of the two front brakes and the RHC brake was reduced due to equipment defects and the presence of air-leaks in the braking system, which existed prior to the accident. 105 The defendants do not agree that only three of the six brakes on the truck were working to their design capacity at the time of the accident. In particular they expressed some reservations with regard to Mr Sunol's conclusions about the over-stroke indicator in the front brake converter. According to Mr Sunol it was not possible for him to accurately determine whether the indicator may have over-stroked prior to the accident, even though it did over-stroke on the first occasion that the brake was applied, (on 18 July 2005 at the premises of Gough & Gilmour when the three air reservoirs were being pressurised). 106 According to the defendants it was significant that the over-stroke indicator had not been pushed out. According to Mr Richardson this was a key indicator as to the performance of the brakes, that is, if the indicator had not over-stroked there was hydraulic fluid in the line at the time it was operating. 107 The significance of the over-stroke indicator as I understand the evidence is that if it is pushed out by the air operated piston housed within the air chamber of the brake converter, it indicates that there is a fault in the hydraulic part of the brake unit. This fault may be due to numerous causes, for example, leaking oil, a broken line, or air mixed in with the hydraulic fluid. 108 In my view the evidence concerning the condition of the over-stroke indicator in the front brake converter at the time of the accident was inconclusive. Mr Sunol observed, for example, during the testing process, that the indicator was loose in its socket and did not latch in securely. The evidence with regard to the condition of the over-stroke indicator at the time of the accident does nothing to detract from the findings which I have made that the three disc brakes did not work to their design capacity at the time of the accident. The condition of the three disc brakes was the result of equipment defects and air leaks in the system which reduced the performance of those brakes. The evidence upon which those findings were based indicated that there was no, or very little, hydraulic brake fluid inside the hydraulic cylinder section of the brake converter at the time of the accident, because the front brake fluid reservoir was almost empty. The front brake converter also had a leaking seal which leaked brake fluid into the air chamber of the converter. Whether on the day of the accident, had the engine failed for any reason while descending, the air compressor would have ceased to operate, the retarder would have disengaged, and within a very short period the air pressure in the braking system would have dropped to a point where the brakes could not bring the truck to a halt. 109 The defendants do not agree that the braking system on the truck would, or did, drop to a point where the brakes could not bring the truck to a halt. They submit that there was no evidence that the engine stopped and all systems of braking failed. 110 According to Mr Russell Smith, if only half the braking capacity of the truck was available, and the engine was not running, it would be "virtually impossible" to halt the laden truck on a 1 in 5 decline. It will be recalled from the agreed facts, set out in these sentencing reasons, that the haul road had an average gradient of 1 in 5, with some sections being almost 1 in 4. 111 With regard to the condition of the brakes at the time of the accident I have already found that the front brake air circuit was affected by three air leaks. The split in the air hose, which carried air from the front brake air reservoir to the relay valve, caused a loss of air pressure. A further loss of air pressure was caused by the leak in the retarder valve (which linked into the air pressure system). The leak in the retarder valve was described by Mr Lewis from ABC as a "large air leak, at 20 psi". Air pressure was also leaking through the front brake intensifier (the converter) because of the worn hydraulic seal. In addition to those faults, the two front brakes were incapacitated because of the very low brake fluid level in the front brake reservoir, and the RHC brake was inoperable (in that it could not function effectively) because of the presence of the oil mixture. The consequence of these various faults in combination was that the truck prior to the accident had only three effective brakes. It follows that if, for some reason, the retarder on the truck disengaged on the descent then Mr Smith had only half the brakes at his disposal in order to bring the truck to a halt. Utilising the park brake would not have assisted him since, as I have found, it was so out of adjustment that it would have provided no braking force on the haul road. 112 The conclusion which inevitably follows from these matters is, taking into account Mr Smith's finding outlined above, that if the engine of the truck had stopped on its descent (for whatever reason) and the retarder disengaged, then with only three effective brakes and the loss of air pressure, the truck could not have been brought to a halt on the haul road and would have been in a runaway condition. Did the engine stop? 113 The next issue for consideration is whether the engine stopped, for whatever reason, prior to its plunge over the embankment. 114 It was Mr Sunol's conclusion that the engine had stopped prior to the accident. His conclusion followed his physical examination at Gough & Gilmour of a number of component parts of the engine. He examined the radiator and the fan and noted that the damage to both parts was light and not extensive. This minimal damage to the radiator, for example, Mr Sunol said, was consistent with it not turning. It was put to him in cross-examination that the small amount of damage could have been the result of a short period of time in which the radiator fan touched the radiator fins. Mr Sunol rejected this proposition saying: I was trying to explain even for a short period of time, the impact and the lack of damage to the aluminium motor fan hub and other components are consistent with it not turning - because if you look at the fan hub in particular, it is, there is zero damage. When you look at the fan propeller with consideration, it is doing even at idle 11 revolutions per second, even if it touches for a fraction of second a tenth of a second, then I would expect to see every fan blade tip broken off. 115 Mr Richardson, one of the defendants' experts, estimated that the speed of the truck immediately before it went over the embankment was about 39 kmh. Mr Russell Smith agreed in cross-examination that a truck travelling at a speed in the vicinity of 45 to 50 kmh meant that the retarder was not working. 116 In written submissions on the issue the prosecution said: The starting point is to accept that at the time the Truck struck the concrete blocks at the edge of the embankment and then became airborne it was travelling at about 39km/h. The Defence witnesses accepted that the Truck could not have reached that speed with the retarder on. 117 Mr Richardson did not provide any basis for his estimate that the truck's speed was, "about 39kmh". Nevertheless there was no dispute that the launch speed of the truck was approximately 39 kmh, and that at this speed the retarder could not have been engaged. As to the other defence witnesses who, according to the prosecution's submission, accepted that the truck could not have reached a speed of 39 kmh with the retarder on, only Mr Smith gave evidence of a particular speed at which the retarder on the truck would disengage. He said it was between 45 to 50 kmh. 118 An inference is also available from the evidence that the truck's rate of descent down the haul road was rapid. Mr Warden, who gave an eye-witness account, described the truck as pushing the concrete blocks through the embankment and launching into the air before nose-diving into the embankment. He saw rocks and dirt being thrown up as the truck "ploughed" through the rocks and the concrete barrier. This description suggests that the truck was travelling at a fast speed immediately prior to going over the embankment. 119 The minimal damage sustained to the radiator and the fan as observed by Mr Sunol, and the rapid speed of the truck's descent, suggest that the engine had stopped prior to its plunge over the embankment. According to Mr Russell Smith, the retarder would be non-functional should the engine cease to operate. With the retarder not functioning, the truck was reliant on its service brakes to bring it to a halt. If the brakes were not able to stop the truck, it would be in a runaway condition. 120 The retarder would cease to operate for other reasons. It would cease to operate if Mr Smith had his foot on the accelerator and was driving in automatic mode down the haul road. This contingency may be discounted, however, because of the evidence concerning the blueing of the left-hand rear disc. In my view the effect of that evidence was that Mr Smith was attempting to apply the service brakes on the haul road (and therefore would not, at the same time, have had his foot on the accelerator) immediately prior to the truck's plunge over the embankment. I deal now with the evidence concerning the blueing of the left-hand rear disc. 121 The prosecution contended that the heat marks on the disc (and brake pad locating pin) observed by Mr Sunol, meant that the brakes had been applied on the descent and that those brakes were in such a state that they were incapable of bringing the truck to a halt. 122 Mr Sunol's evidence of what he observed in respect of the left hand rear disc and pins was: a. heat marks on the brake disc and outer brake pad locating pin; b. the heat marks were located on the brake disc directly underneath the outer brake pad; c. the outer brake pad had marks on the rear third of the pad which matched up with the heat marks on the outer rear brake pad locating pin; 123 Mr Sunol concluded that the heat marks were "a direct result of the incident". They were not pre-existing marks prior to the incident because of three matters: a) they would not have been directly underneath the brake pad. b) they would not have imprinted the brake pad segment on the brake disc. c) they would have been scuffed off from further use if the heating occurred early. 124 His overall conclusion that the blueing of the disc had occurred at the time of the accident was expressed as follows: Based on my expert knowledge and experience I concluded heat marks are from the heat energy obtained during braking of Truck 28 as it came down the haul road. At the point in time when Truck 28 went over the embankment and the LHR wheel lost traction to the haul road, then the brake pads would have locked up the wheel and the brake disc would have stopped rotating. The heat marks on the brake disc would have been created at this point in time as the heat energy is unable to be dissipated from underneath the brake pads. 125 In his oral examination Mr Sunol added to his evidence on the issue: A. Those markings could only have occurred during the descent. That the markings were as a result that when the brake, the brakes were applied during the descent. They were unusual because normal heat marks are throughout the whole circumference. These marks were in an isolated spot under the brake pads which leads me to the conclusion that as the brake disc has heated up and as it's gone over the embankment and lost traction between the tyre and the road the brakes have locked on solid which has prevented the disc from dissipating heat and creating the blue marks. Q. In that area beneath? A. Yes. The only area that showed signs of blueing was directly underneath the pads and only in the rear segment of the pad. The front segment of the brake pads did not show signs of heating. Q. I will just follow the mechanism you have described, you envisaged that the brake rotor became seriously hot in the course of going downhill; correct so far? Q. That when the vehicle left the road surface at the edge that in the absence then of the friction between the tyre and the road surface the brakes were able to lock the wheel at last? A. That's correct. Q. And the heat dissipated from the balance of the disc but could not escape from that area which was enclosed by the brake pads themselves? A. Yes, that's correct. Q. And that is what we are looking at here in your view? A. Yes. 126 Mr Richardson, in his report, expressed some criticism of Mr Sunol's findings. He suggested that additional tests could have been conducted by a metallurgist with regard to the heat marks on the disc. He did not elaborate, however, on why he thought that was necessary. Mr Lewis was asked in cross-examination whether a metallurgist was necessary in order to identify with precision when the heat marks appeared on the pad area. His response was "No ... something I understand as an engineer". He was not questioned further, on that issue. 127 Mr Richardson, in oral evidence, also suggested that it was possible that at the point the truck became airborne the brakes locked on launch (consistent with the prosecution case). Mr Richardson also suggested however that the brakes might have come on suddenly, when the truck was airborne and at that instant the heat caused the blueing to occur. This evidence was advanced no higher than a possibility and therefore does not impact upon Mr Sunol's analysis and findings as to the presence of the heat marks on the disc. I find therefore that the retarder did not disengage because Mr Darren Smith had his foot on the accelerator. Rather, he was attempting, unsuccessfully, to apply the brakes while the truck was descending the haul road at a rapid speed, prior to going over the embankment. 128 The retarder could also disengage because of a mechanical problem caused either by a significant drop in air pressure or because the engine revolutions had exceeded 2,500 rpm or had dropped below 1,200 rpm. That the engine exceeded 2,500 rpm may be discounted because that event was not recorded on the truck's ECU (the truck's "black box"). According to the truck's Operator's Manual: The retarder will automatically engage when the engine speed reaches 2,500 rev/min and it will disengage at 2,300 rev/min to prevent engine overspeeding. If the vehicle is approaching an overspeed condition, the retarder is automatically applied at 2,500 rev/min irrespective of the transmission oil temperature. If the overspeed condition occurs the transmission will upshift to 2,700 rev/min and a fault code will be recorded in the ECU for the engine overspeed and/or the transmission temperature. 129 Mr Badior, in cross-examination, was asked about the above extract from the Operator's manual (referred in the evidence as "the book"). The transcript of his evidence records: Q. And as the book tells us, if it reaches 2,700 revs per minute a fault code will be recorded in the ECU. I just want to ask you about that. You know the ECU to be the on-board computer? A. That is correct. Q. And you know, don't you, that examination of the T28 ECU after the accident showed that there was no fault recorded for the last four occasions that the engine had been utilised? A. That is correct. 130 Mr Russell Smith, in oral evidence, said that if the engine of the truck stopped then the retarder would not function (because the lockup clutch automatically disengages). He was also asked some questions about the pre-existing air leak on the retarder valve and the consequence of the leak on the operation of the retarder. He said: I assume that it would disable the retarder totally and actually the testing that we did was with the retarder inactive. 131 According to Mr Warden, with the retarder engaged, the truck would normally descend in second gear travelling at about 8 to 10 kmh. With regard to the air leak on the retarder valve, Mr Sunol concluded that it would have caused the retarder to disengage earlier, upon a loss of air pressure, than it otherwise would if there was no air leak. Mr Russell Smith merely assumed that the air leak would, "disable the retarder totally". This evidence does not enable the Court to conclude, with any degree of certainty, that the air leak on the retarder valve caused the retarder to disengage. 132 There was other evidence from which the conclusion may be drawn that the retarder disengaged because the engine had stopped when the truck was descending the haul road. This was the evidence that the truck was travelling at a rapid speed down the haul road (Mr Warden's eye-witness account), Mr Richardson's estimate that the truck was travelling at a launch speed of about 39 kmh (at which speed, it was conceded, the retarder was not engaged), as well as Mr Sunol's analysis and findings that the engine had stopped, based on the condition of the radiator, the fan and other components. Based on this evidence I find beyond reasonable doubt that the engine stopped at some point when the truck was descending the haul road. The effect of this evidence was, as earlier observed, that the truck was totally reliant on its service brakes to slow its speed or bring it to a halt. As the heat marks on the left-hand rear disc suggest, Mr Smith was attempting to apply the brakes while the truck was on the haul road. He was unsuccessful because, as I have found, the service brakes were operating at half capacity. The state of the service brakes at this critical time were such that, with the engine not running, the truck could not be brought to a halt. 133 The defendants criticised Mr Sunol's approach to his investigation of the reasons why the truck became out of control. It was said that Mr Sunol's approach was too narrow, focusing on the truck's mechanical failures and not considering any "human factors" that may have contributed to the truck becoming out of control. 134 One such factor advanced as "not implausible" by the defendants was that Mr Smith may have fallen asleep. A report of Professor Ian Whyte from MediTox Pty Ltd was relied upon by the defendants in support of the contention. Professor Whyte was provided with documents which included the autopsy report of Dr Lyons and a toxicology report of 9 August 2005. With regard to the latter report Professor Whyte noted: The toxicology report showed no evidence of alcohol but identified diphenhydramine in femoral blood at a concentration of 0.2 mg/l and ibuprofen at a concentration of 5.2 mg/l. 135 Professor Whyte observed that 0.2 mg/l was within the reported therapeutic range of four 50 mg doses per day but he could not say whether this resulted from one acute dose or from chronic multiple dosing. Professor Whyte concluded: In summary, diphenhydramine in acute doses of 50 mg or more can impair driving. The main deficits are in maintaining position within a lane and reaction time. Psychomotor testing suggests these driving impairments come from decreased vigilance and attention. There is a dose relation with higher doses causing more impairment... 136 In relation to the level of ibuprofen noted in the toxicology report, Professor Whyte found no evidence that it adversely affects driving performance either alone or in combination with other drugs. 137 This evidence provides no support for the defendants' contention that Mr Smith might have been drowsy or further asleep as a result of medication he had taken. The level of diphenhydramine in Mr Smith's blood, Dr Whyte could not say was the result of an acute dose or from chronic multiple dosing. It was only if the level of diphenhydramine was the result of an acute dose that Mr Smith's driving might have been impaired. No evidence was found by Dr Whyte that ibuprofen adversely affects driving performance. 138 The defendants also suggested that it was "not fanciful" that Mr Smith, "had taken a micro sleep and/or had a reduced capacity to react at the time of the incident". The bases upon which this proposition was advanced was that Mr Smith weighed 111 kg, had been at work since 6 am, monotonously driving up and down the haul road with diphenhydramine in his blood, and, because it was June with the temperature likely to have been low, Mr Smith was likely to have had the air conditioner working. These matters, which amount to no more than conjecture, provide no support for the proposition that Mr Smith had taken a micro sleep or otherwise had a reduced capacity to react. Why did the engine stop? 139 The prosecution contended that the engine stopped because it ran out of fuel. There was evidence which lends support to the contention. Photographs of the truck taken at the accident site showed the truck on its side, with the fuel tank in the air. On 17 June 2005 at the accident site Mr Sunol saw no obvious signs of damage to the fuel tank. He observed that the diesel fuel filler cap was intact and the diesel fuel filler was located at the top of the fuel tank as the truck lay on its side. He also observed what he thought was fuel spillage around the fuel filler cap. In his opinion the spillage appeared to be the result of the fuel tank having being filled on site and the spillage having occurred while the fuel nozzle was removed or placed into the tank. The basis of his opinion was that he saw no evidence of fuel leakage from the cap because it was intact on 17 June 2005. 140 Based on his observations made at the accident site on 17 June 2005, Mr Sunol concluded the following: fuel did not drain out of the fuel tank through the filler cap during the incident. In my opinion a small spillage may have occurred, through the filler cap breather, during the period of time truck 28 travelled down the embankment assuming it rolled one or more times. The reason for my opinion is the fuel tank breather is in the fuel tank cap, as recorded in figure 115 below, and I observed the cap intact on 17 June 2005. 141 Subsequent to Mr Sunol's observations made at the accident site, he examined and tested the fuel tank. He found the fuel tank cap to be intact and the rubber seal which sealed the cap against the fuel tank also to be intact. He noted a small breather hole covered by a piece of sponge type material which was used to maintain the fuel tank at atmospheric conditions. He observed that the breather (on the fuel tank cap) was also intact and that the securing screws for the breather were loose and appeared to be stripped. Mr Sunol also examined the interior of the fuel tank and did not see any signs of fuel inside it. He also witnessed the fuel tank being removed and noted that it had sustained minimal damage. The remaining fuel inside the tank was drained and found to measure about 133 ml. The fuel tank was filled with water in order to test for leakage. No leaks were found. 142 With regard to the small breather hose in the fuel tank cap Mr Sunol explained in oral evidence that fuel could only escape through that hose (which he described as "an inch to inch and a half by three-quarters of an inch" in size) as the truck was rolling. This evidence tends to support Mr Warden's account that he smelled diesel dripping out of the filler cap, when he went to examine the truck immediately after it had come to rest over the embankment. Mr Warden described it as "just a slow leak, a slow drip. It wasn't pouring out". 143 After the accident Mr Sunol also examined the fuel pick up line. He measured it and found it to be about 24 mm off the bottom of the fuel tank. This meant, according to Mr Sunol, that in static tests the fuel pickup would be clear of the remaining fuel while the fuel remaining in the tank was: (a) 9 litres when the truck was on the horizontal (b) 22.5 litres when the truck was on a 22.2 per cent downgrade (c) 15.5 litres when the truck was on a 22.2 per cent upgrade. 144 The minimum fuel level needed to safely traverse horizontally therefore would be 9 litres remaining in the tank and 22.5 litres on the downgrade. Mr Sunol qualified the result of the static tests however on the basis that the tests did not take into account the movement of the truck. The truck's fuel system, which was an air-tolerant PT fuel system, he said would continue to operate even if some air got into the fuel line. Continual vibration of the truck while it was in motion, therefore, would cause the remaining fuel to bounce over the fuel pickup point and continue to deliver fuel to the diesel engine injectors. 145 Mr Sunol's analysis and findings concerning the fuel level in the fuel tank were reviewed by the defendants' expert witness, Mr Russell Smith. In Mr Russell Smith's opinion, the very low residual fuel volume found in the tank after the accident was not evidence that the truck ran out of fuel prior to the accident. He postulated four alternative explanations as to why the tank was all but empty when Mr Sunol examined it at the accident site. These were: 1. leakage; 2. evaporation; 3. safety measures; 4. theft. 146 Mr Russell Smith conducted a number of tests on truck No 27 (the other Terex truck operated at the quarry) in order to establish the fuel levels and the tank orientation required to result in leakage from the filler cap. Based on the refuelling records from the quarry he said that 240 litres was a realistic upper bound for the fuel volume in the tank at the time of the accident. Truck No 27 was then oriented in order to simulate as closely as possible the truck's orientation at the time of the incident. Mr Russell Smith found that no fuel discharged from the filler cap at this orientation. When Truck No 27 was tilted to a steeper orientation (25 degrees), he found that leakage from the truck was possible only if the tank was very full and then only slowly (1-2 litres/minute). He concluded that because of the very short duration in which the truck had been inverted during rolling, only minimal fluid would have been lost during the incident. 147 Mr Russell Smith accepted that the fuel tank was empty at the time of the accident and that it did not leak, or leaked only slightly. 148 According to the prosecution, Mr Russell Smith accepted Mr Sunol's view that the fuel system would continue to operate even if some air got into the fuel line. He also agreed that as fuel sloshed around while the truck was moving, more fuel would be used than had been determined by Mr Sunol's static tests. Mr Russell Smith's test, conducted when truck No 27 was idling (as opposed to static) on the horizontal, confirmed that the engine would cut out when there was about 5.5 litres left in the tank. Mr Sunol's static test showed that the figure was 9 litres. The results of Mr Russell Smith's test indicated therefore that when idling, sufficient vibration was caused for an additional 4.5 litres to be used. 149 Mr Russell Smith also reviewed the quarry's refuelling records for the truck. He concluded from those records that assuming that the fuel tank was empty when it was last refuelled (on 10 June 2005) then at least 18.8 litres could have been in the tank at the time of the accident. This quantity was well in excess of the 133 ml (about one-third of a cup) claimed by Mr Sunol to be left in the tank during his testing process after the accident. 150 Based on these matters, Mr Russell Smith concluded that the low volume of fuel found remaining in the tank during Mr Sunol's investigation was evidence of an additional extraction process. He continued: As the additional fuel extraction process cannot be identified, the amount of fuel extracted by this process cannot be established, and the fuel level in the tank prior to the incident cannot be quantified. As such, it cannot be concluded that the tank was empty prior to the incident. 151 As the prosecution pointed out, Mr Russell Smith concluded that there could have been at least 18.8 litres in the truck at the time of the accident based on the refuelling records and the calculations he made by reference to those records. The records were however incomplete. Mr Russell Smith's calculations rested upon what he determined was the average number of litres used per trip (that is, hauling on the flat or downhill). According to Mr Sunol the lack of consistency of the records as to when the truck was refuelled meant "there were just too many variables". 152 In cross-examination, Mr Russell Smith accepted that some fluid could have leaked out of the fuel cap as a result of the truck rolling over and fuel being trapped in the inlet hose and leaking out through the fuel cap. This was consistent with Mr Sunol's conclusions as well as Mr Warden's account that he smelled diesel dripping out of the filler cap at the quarry, on the day of the accident. 153 The New South Wales Rural Fire Service attended the quarry on the day of the accident. Kenneth Hepplewhite, an operations officer from the Rural Fire Service provided two statements outlining his recollection of events on that day. In his first statement he said that he and his colleagues arrived at the site and inspected the truck when it was "just on dark". He added that it was difficult to see so the inspection was conducted under torchlight. He described a "spill" which he said was not enough to cause concerns about a fire risk or risk to other traffic. He estimated that the spill was somewhere in the vicinity of 20 to 40 litres. In his second statement, Mr Hepplewhite described the spill as a "fluid spill ... or substance similar to diesel. It wasn't a heavy grade oil It was similar to the consistency of diesel". He also said that he was not certain of the nature of the fluid but that he believed it was diesel because of, "the grade of the ... fluid". He said the spill was directly underneath the vehicle. 154 The defendants rely on Mr Hepplewhite's account to support a conclusion that 20 to 40 litres of diesel found in the vicinity of the truck meant that at the time the truck went over the embankment it had sufficient fuel to keep the engine running. 155 Mr Hepplewhite could not be certain however that the fluid he observed was in fact diesel. If it was diesel, the quantity estimated by Mr Hepplewhite seen in the vicinity of the truck would appear to have been sufficient to have kept the engine running prior to the truck's plunge over the embankment. Support for this apparent state of affairs may be found in evidence given by Mr Sunol. When questioned about Mr Hepplewhite's observations about the nature and quantity of the "spill", and whether those observations affected his opinion (as to why the engine stopped), he said: So if there was 40 litres which could be somehow quantified accurately then yes, it would change the status of my report if it came out. If there was 20 litres that could be quantified accurately, I don't believe it would change the status of my report. Q. If it was 40 litres, how would that change the status of your report? A. Because if the assumption was that 40 litres of fuel somehow came out through the breather as the truck rolled, happened to come out into the soil and was able to quantified, then I would then be able to assume that at the time of the accident there was 40 litres in the tank. Q. And if there was 40 litres in the tank, what would be the effect upon your opinion in relation to what happened to the injured? A. All it would do is say that the engine didn't stop as a result of fuel. 156 Mr Sunol did not attend the accident until 15 June 2005, the day after the accident. With regard to a quantity of fluid on the ground near the truck, he provided the following description in his report: Large accumulations of oil to the underside of the LHF of truck 28, underneath the transmission/front axle and underneath the hydraulic reservoir which was inverted. I note there was spillage absorption material placed around this area. What I assume was the breather for the hydraulic reservoir was also inverted and appeared to be leaking. The oil I observed was consistent in nature to hydraulic oil. The liquid I observed was not diesel fuel. 157 Mr Sunol did not take samples of the "oil" he observed at the site. In cross-examination, however, Mr Sunol explained the basis of his conclusion that the fluid in the vicinity of the truck was not diesel. His evidence is extracted below: Q. Further down the page you observed on either 15, 16 or 17 June "(g) large accumulations of oil to the underside of the left-hand front of truck 28"? A. Yep. Q. You didn't get samples of that? A. No. Q. Could it have been oil and diesel as a mixture? A. From my experience and from what I saw, it was definitely hydraulic oil or transmission oil. If the question is could there have been diesel mixed in with it, I certainly didn't observe that. Q. The large accumulation of oil you have referred to here, was that pooling on the ground or was it all over the truck or was it in some other way to be found? A. It was on the ground and it was all over the left-hand front wheel area. Q. You also say there's spillage absorption material. What material was that? A. From what I recall, that was - I think there might have been a greeny coloured bag which was put on around the breather hydraulic tank, which was upside down. I would assume that's probably the one the Fire Brigade took out, I think. I might have a photo of it in the back. It's reasonably unclear but if you went to page 227 of my report, figure 38, or picture 38, in that photo you can see the oil stains, you can see the bag which was around the inverted breather and you can see the browny coloured material, which is the absorption material I'm talking about. Q. In any event, how thick was the spillage of the absorption material you saw? A. I didn't measure it. To me it looked like what you would expect when someone throws this stuff in a bag on the ground, so it was undulating - I don't know, I'd only be guessing. Q. Was it holding fluid? Had it absorbed something? A. It's a shame I haven't got a bigger photograph but in that photograph you can see it's absorbed some fluid and some parts hasn't absorbed fluid, so yes. Q. In relation to whatever it absorbed, you couldn't tell what it absorbed, could you, whether it was oil or diesel or whether it was hydraulic or brake fluid, could you? A. Based on my experience in mining, all I observed was hydraulic and transmission fluid. it was not brake fluid and it was not diesel. What I can't discount is that there was possibly a small amount of diesel mixed in, maybe, but what I observed was definitely hydraulic or transmission fluid. Q. It is easy to tell the difference between hydraulic fluid and diesel fuel, isn't it? A. That's correct. ... A. Hydraulic fluid is more viscous. Diesel fuel is very thin and slippery and it also has a distinctive smell. Q. Once you have whatever material was absorbed into the absorbent material, it would be far more difficult to determine viscosity, would it not? A. Some of it pooled, no. Q. Would you answer my question, I'm not worried about what's pooled, I'm asking about what's been absorbed into that absorbent material. Once the fluid, whatever it is, has been absorbed into the absorbent material, it would be far more difficult to determine, by reference to its viscosity, as to what it was? A. If a piece of that material was put in my hand, I could tell you straight away." 158 Given Mr Hepplewhite's level of uncertainty about whether the fluid he observed was in fact diesel, and Mr Sunol's level of certainty that it was not, I am of the view that the fluid observed by Mr Sunol on 15 June 2005 was, in all probability oil, not diesel. My view is fortified by reference to Mr Sunol's expertise and qualifications as a mechanical engineer, and his extensive experience in the mining industry which includes the investigation of mechanical incidents. He also attended TAFE courses in diesel engines and hydraulics and pneumatics. Mr Sunol was experienced enough in my view to assess the difference between oil and diesel. 159 According to the defendants, Mr Sunol's approach to the accident investigation in general was "lax". In particular, the defendants pointed to a number of tests which were not performed by Mr Sunol with regard to the issue of fuel. Mr Sunol, it was said, did not conduct any tests on the fuel cap or breather to determine how much fuel could leak out over time. 160 It is difficult to see, however, what relevance such a test might have had in view of the evidence that the truck came to rest on its side with the fuel cap and filler located on the top and intact, which meant that a quantity of about 240 litres could have remained in the tank. It was Mr Russell Smith's conclusion that the tank filled to 240 litres would only leak if at an orientation steeper than the orientation of the truck at the accident site (about 25 degrees) and only then at a slow rate of 1 to 2 litres per minute. 161 Mr Sunol was also criticised for not conducting a calculation of average fuel use. As I earlier pointed out, however, the fuel records were incomplete and the available data could not be relied upon to provide any accurate estimate. He was further criticised for not conducting fuel tests immediately to establish what fuel remained. Such a test, however, could not have yielded any certain result since, in theory, some fuel may have leaked out earlier. 162 The defendants' submissions also raise the possibility that someone might have stolen fuel from the upturned truck. There was no evidence however to support the suggestion that someone had access to the accident site and stole fuel. The suggestion was based on conjecture and for that reason is rejected. 163 Other possibilities were explored by Mr Sunol in an attempt to discover why the engine stopped. One possibility considered was the emergency stop button which was located on the front left-hand side of the engine bonnet. Mr Sunol, upon examining the pattern of damage to the truck, considered that the damage was only consistent with it impacting on its nose then rolling to the left (the same side as the emergency stop button). The emergency stop button, he observed, had been pushed in. According to Mr Sunol, this had occurred when the truck rolled onto its left side. The function of the mechanism is such that as soon as it is pressed or touched, the engine stops. According to the defendants, this provides an alternative plausible explanation for the lack of damage to the radiator and fan impeller that does not rely on the truck running out of fuel. It seems to me, however, that if as Mr Sunol described it, the truck first impacted on its nose before rolling to the left then the first point (or one of the first points) of impact would have been the radiator. If the engine had been running at this time then no doubt the radiator would have sustained substantial damage, not minimal damage, as observed by Mr Sunol. The emergency stop button was depressed when the truck rolled onto its left side, which only occurred after it impacted, nose first, into the embankment. It follows that the engine had stopped before the emergency stop button was depressed by the action of the truck rolling onto its left side. 164 Another reason advanced for why the engine stopped concerned a wire leading to the emergency stop button which, upon examination, was damaged and there were signs of arcing on the hole where the wire went through. In relation to these matters, Sunol said: In my opinion the wire had been intermittently contacting the bonnet and shortening out at some point in time, as evident by the signs of arcing in the hole where the wire went through. Testing indicated that an intermittent arcing against the engine bonnet would most likely have resulted in the intermittent stopping of the engine as the power to the fuel shutdown solenoid would be cut off due to the intermittent short circuit. This would have the same effect as turning the engine off with the key or the engine running out of fuel. 165 Mr Ainslie, in his report, came to a similar conclusion: 'Arcing' marks on the brown wire going in the emergency stop box appears to indicate there may have [been] an intermittent problem with the wiring shorting out prior to the accident. The shorting out would have caused the engine to shutdown if shorted to ground for a long enough period because the emergency stop is wired into the fuel shutdown solenoid. 166 Mr Ainslie was not cross-examined as to his conclusion. Mr Sunol was. He said it was "probably unlikely" that the arcing of the wire was the cause of the engine stopping on the day of the accident. 167 The defendants advanced a further alternative explanation for the minimal damage sustained to the radiator and the fan impeller blades. This alternative explanation involved the truck's battery box which became detached from the truck at some point during the accident. In oral evidence, Mr Sunol said that if the battery became detached from the truck, it would stop the engine. According to Mr Sunol, the battery box came off with the "major impact" (at a point down the embankment) and would have occurred at the same time as "the radiator and the front chassis all came in". In re-examination, Mr Sunol said that disconnection of the battery does not instantly stop the engine and that the fan would continue to turn for some seconds. This alternative explanation suffers therefore from a similar deficiency to the other alternative explanation advanced by the defendants concerning the emergency stop button. If the engine had been running at the point of impact when the battery detached and the radiator and front chassis "all came in", it would be reasonable to conclude that substantial damage to the radiator would have been sustained, not the minimal damage observed by Mr Sunol which he said was consistent with the engine not running. 168 The defendants contended that the minimal damage sustained to the radiator and fan impellors could have been the result of the broken fan belt. At the time the fan belt was broken, the DST fan drive would not be engaged. Mr Sunol's conclusion with regard to the broken fan belt, however, was that the break appeared to be a tension break from impact. This conclusion, which was based on Mr Sunol's observations of the item, is not inconsistent with his finding that the minimal damage sustained to the radiator and fan impellors was consistent with the engine not running, prior to its plunge over the embankment. 169 I have found beyond reasonable doubt, that the engine on the truck had stopped at some point in time prior to its plunge over the embankment. As to why it stopped running, the probable explanation, I find, is that it had insufficient fuel left in the tank. 3. The truck's steering - particular B Whether the Terex maintenance manual states that nitrogen gas pressure can be checked using a simple gauge mechanism. 170 The dispute with regard to what the manual states is confined to whether the nitrogen gas pressure could be checked using a simple gauge. 171 According to Mr Badior, the process associated with charging the accumulator with nitrogen gas was dangerous and should not be entrusted to an operator. In cross-examination, he agreed that the process was not complicated but provided an explanation for his view, which was: "You're playing around with high pressure gas and I wouldn't want to expose any worker that wasn't used to it or tradesmen to do that." 172 The Terex maintenance manual sets out the procedure to be followed for charging the accumulator. It appears to be a relatively straightforward procedure, although the manual does attach some warnings which alert the operator to exercise care when working with pressure in the system. Other than that, the manual sets out a procedure for checking the accumulator charge using a simple gauge mechanism, namely, attaching a line to a valve, screwing it on and then turning a T-handle clockwise to allow the pressure to go through a gauge which is then read to check the pressure. This matter relied upon by the prosecution has therefore been made out beyond reasonable doubt. Whether no checks of the nitrogen gas pressure were conducted after March 2004. 173 The defendants concede that the nitrogen gas pressure was not checked using a gauge but contend that AMMESA-trained operators tested the nitrogen gas pressure by turning the steering wheel in both directions after the engine had been turned off. 174 Mr Warden was asked some questions in cross-examination which touched on this issue. He gave the following account: Q. Of course, if the steering accumulator tank were empty of the pressure it is supposed to build up, that would be immediately apparent, you would not be able to turn the steering wheel? A. I believe so, but I'm not a mechanical expert either. Q. You knew why you were testing, it was to see if the wheel could be turned? A. That's right. Q. If it could be turned you had emergency steering? A. Yes. Q. You understood if it couldn't be turned there is no pressure? A. Yes. Q. These trucks were to be tested every time they were driven? A. Yes. Q. If there were no pressure in the tank that would be immediately obvious to the person who was testing it? A. Yes. 175 Although expressing some initial reluctance to agree with the first proposition put to him, Mr Warden later agreed that an inability to turn the steering wheel meant that there was no pressure in the accumulator. Earlier in his evidence, however, he agreed that he performed pre-start checks every time he drove truck No 27, which he said was in excess of 10 occasions. He also outlined the procedure relating to the emergency steering, which was one of the tests. This involved starting the motor, allowing the air pressure to build up and then testing to see if the steering wheel would turn with the engine turned off. He agreed that if the wheel turned this meant that there was residual pressure in the accumulator tank. 176 None of this evidence suggests that any testing was done after March 2004 using a gauge mechanism on the steering accumulator. Mr Badior in his evidence confirmed that none of the quarry workers performed the task. He also said that no nitrogen gas was kept on the premises. Mr Boyd Taylor gave evidence that he had never checked the function of the emergency steering accumulator. It does not appear to be in contest that Mr Taylor was the only person who serviced the truck at the quarry from March 2004. It follows that checks in accordance with the Terex maintenance manual on the nitrogen gas presence using a gauge had not been carried out since March 2004, and I so find beyond reasonable doubt. Whether there was a test which operators could use to test the operation of the steering accumulator that did not involve using any device; namely, by turning the steering wheel in both directions after the engine had been turned off. 177 I have already referred to the evidence given by Mr Warden on testing the steering accumulator. The test was one that operators could use that did not involve using a device. It involved simply turning the steering wheel after the engine had been turned off. Mr Warden said that he had driven both Terex trucks from about October 2004 and he had also performed the test at least on truck No 27 as part of his pre-start checks. Mr Badior in his evidence said that AMMESA provided training to the operators on how to test the steering accumulator and that this involved starting up the engine, getting the air filled up, turning off the engine and taking, "as many turns left and right as it will take," in order to check that there was stored energy in the steering. 178 This evidence establishes that operators at the quarry were trained to perform the test prior to the accident and that Mr Warden at least incorporated the procedure into his pre-start checklist from October 2004. The procedure was set out in the truck's operator's Handbook which contained a statement to the effect that, "accumulator pressure should be dissipated after engine shutoff by turning the steering wheel in both directions to avoid accidental steering during bleed down". Whether at the time of the accident the emergency steering accumulator on the truck was not functional as it contained no nitrogen gas. 179 The defendants concede that there was "little nitrogen gas" in the accumulator at the time of the accident but dispute the asserted fact relied upon by the prosecutor that it contained no nitrogen gas. 180 The defendants agree that the accumulator was not functional on the day of the accident. According to the prosecution it was not functional as at 14 June 2005 because it contained no nitrogen gas. 181 On 14 July 2005, at Gough & Gilmour premises Mr Sunol observed the steering accumulator being tested for gas presence. As the tests were being carried out he noted that there was no pressurised gas in the accumulator, it was not able to be charged and that it otherwise appeared undamaged as a result of the accident. He witnessed further tests being carried out after which he concluded that the steering accumulator was not functioning at all at the time of the accident. Later, Mr Sunol delivered the accumulator to Newcastle Hydraulics, a division of Hydratech Engineering Pty Ltd, where further tests were carried out. Based on observations he made there he concluded that there was an internal leak in the steering accumulator which would have prevented it from holding gas pressure even if it had been charged, and accordingly the accumulator had held no gas pressure prior to the accident. 182 Mr Ainslie's report concurs with the findings made by Mr Sunol. Mr Ainslie concluded: The steering accumulator piston was stuck in the top of the cylinder bore. The piston should be at the bottom when there is not a steering pressure to counteract the "nitrogen" charge on top of the piston. The accumulator did not seem to have any nitrogen charge on top of the piston. This would have rendered the accumulator unserviceable and would not have provided any emergency steering. 183 Mr Richardon expressed agreement with the findings of Mr Sunol and Mr Ainslie that the accumulator was not functioning prior to the accident: There is evidence that the nitrogen accumulator was not functioning as intended post collision and it is most likely that the nitrogen accumulator was not functioning as intended at the time of collision. However there is no evidence of any other steering system failures. The analysis presented by Mr Sunol more likely supports that the accumulator was damaged pre-collision rather than during the collision. 184 The tests conducted at Newcastle Hydraulics were performed by David Boyle, the workshop co-ordinator. Mr Boyle recorded his conclusion with regard to the steering accumulator in the following passage of his report: Inspection of the accumulator showed the nitrogen precharge was zero psi (0 bar) and the piston was located at the gas side end cap. A nitrogen precharge was supplied and the piston moved at approximately 600 psi to a distance 500mm from end until precharge reached 800 psi than the piston continued to end of accumulator. The piston seals allowed nitrogen bypass at approximately 680 psi. The accumulator was disassembled showing scoring on the piston and in the bore of the accumulator. 185 It was an agreed fact that the steering accumulator will only work if there is nitrogen gas in the accumulator. The results of the tests performed on the steering accumulator and the various conclusions drawn from those results shows conclusively that there was no pressurised nitrogen gas in the accumulator prior to the accident. I make this finding beyond reasonable doubt. Whether the loss of gas was due to the absence of maintenance and internal scoring of the accumulator cylinder and the piston 186 There was no dispute that the loss of nitrogen gas was due to the absence of maintenance. The area of disagreement concerned whether the loss of gas was also due to internal scoring of the accumulator cylinder and the piston. 187 The evidence on the issue is clear and appears to be unchallenged. Mr Boyle for example observed, when the accumulator was disassembled that it showed scoring on the piston and in the bore of the accumulator. Mr Sunol made a similar observation, noting that when the accumulator was disassembled, there was, "one large score, length wise down the bore of the cylinder". Mr Sunol took a photograph reproduced in his report which clearly depicts the scoring mark down the length of the accumulator. Neither Mr Boyle nor Mr Sunol however formed any conclusion that the internal scoring caused the loss of gas in the accumulator. I am therefore not satisfied beyond reasonable doubt that the loss of gas in the steering accumulator was due to the internal scoring of the cylinder and the piston. Whether Mr Smith either was not informed of the means by which the operating condition of the steering accumulator could be tested, or he failed to carry out those tests. 188 Mr Sunol recorded in his report that he had been told that AMMESA on 23 June 2005 checked the steering systems on truck No 27 and upon checking it found that there was no nitrogen gas in the accumulator. The Court has been asked by the prosecutor to draw an inference from the absence of nitrogen gas in the accumulator of truck No 27 and from the established fact that there was no pressurised nitrogen gas in the accumulator of the truck that neither Mr Smith nor the other operators were instructed how to test the operating condition of the accumulator. 189 Under the quarry's occupational health and safety and mine safety management plan, daily inspections were required to be performed by an operator of plant and equipment, "and recorded in accordance with the relevant procedure". The inspection was to occur each day in accordance "with the relevant checklist". Daily checklist forms were contained within the plan. Mr Smith only ever completed one checklist on 4 May 2005. 190 The fact that there was no pressurised gas in the accumulator of the truck, and no gas in the accumulator of truck No 27, together with Mr Smith's failure to complete pre-start checks (except on one occasion) suggests, at the very least, that Mr Smith failed to carry out a test of the steering accumulator prior to the accident. It was an agreed fact that completion of the pre-start checklist on the day of the accident would have identified the loss of gas pressure in the steering accumulator by carrying out a steering shutdown test. It was not disputed that none of the operators performed the test recorded in the operator's manual using the gauge mechanism. In addition, the truck had a pre-existing fault with the wire on the steering pressure sender. This meant that the low pressure steering warning light was not coming on. Had it been working, it would have indicated to Mr Smith, and the other operators that the accumulator was not functioning. 191 Based on these matters I find beyond reasonable doubt that Mr Smith failed to carry out any tests on the operating condition of the steering accumulator, apart from the one test on 4 May 2005 as indicated on the pre-start checklist conducted by him on that day. Whether other operators of the truck who operated it in the weeks prior to the accident were either not informed of the means by which the continued operation of the steering accumulator could be tested or did not actually conduct that test. 192 The absence of pressurised gas from the steering accumulator of both Terex trucks suggests that prior to the accident none of the operators conducted tests on the condition of the accumulator on each truck. The evidence does not establish how long the accumulators of both trucks had been without pressurised gas, only that the accumulator of the truck involved in the accident (No 28) was not functioning prior to 14 June 2005 due to the absence of pressurised gas. 193 Brian John Russell, one of the operators at the quarry prior to the accident said in evidence that he could not recall receiving any instruction on how to conduct checks on the condition of the steering accumulator. Mr Warden, who drove the trucks after October 2004 was aware of the procedure for carrying out the steering shutdown test, which he outlined in his evidence, and said that he performed the test and incorporated it into the procedure for his pre-start checklist from October 2004. The pre-start checklist records record only one occasion when Mr Warden drove the truck. This was on 28 October 2004. Mr Warden also said in his evidence that he drove both trucks up to a couple of months before the accident, although he could not be sure. 194 It would seem from this evidence that Mr Warden received instruction on how to perform the steering shutdown test but he did not operate the truck in the weeks prior to the accident. Mr Russell did not receive any instruction and did not perform any tests. It is not known on the evidence whether Mr Russell drove either of the two Terex trucks in the weeks prior to the accident. None of the other operators of the trucks in the weeks prior to the accident were called to give evidence. It must follow however that had any of the operators attempted to conduct a steering shutdown test on either accumulator during some unspecified period preceding the accident when the accumulators were empty (or almost empty) of gas, that it would have become known that the accumulators were not functioning. The absence of pressurised gas in the accumulators on both trucks suggests that the test was not performed. The absence of pre-start checklists which would have recorded whether the test was performed is consistent with the test not having been carried out. A number of pre-start checklist forms were tendered by the prosecution. One dated 9 June 2005, which is the last available record on the evidence, records that on that day an operator of the truck, nominated only as "Les" ticked a box indicating that he had checked the steering and it was in good order. This same operator also ticked the same box on the pre-start checklist completed for the truck on the previous day, 8 June 2005. The conclusion I draw from this evidence is that on 8 and 9 June, some days before the accident, one operator of the truck tested the steering and found it to be in good order. 195 Based on these foregoing matters I am not satisfied beyond reasonable doubt that none of the operators of the truck who operated it in the weeks prior to the accident were either not informed of the means by which the continued operation of the steering accumulator could be tested or did not actually conduct that test. 4. Darren Smith Whether Mr Smith suffered multiple injuries that would have rapidly and inevitably lead to death 196 The defendants have expressed disagreement with the proposition relied upon by the prosecution that Mr Smith suffered multiple injuries that would have rapidly and inevitably lead to death. The basis of their disagreement is that the proposition, they say, assumes that Mr Smith was alive or concious at the time of the accident. 197 The defendant's position may be better understood by reference to the Agreed Facts document which records: Mr Smith's body was found partway down the side of the embankment. It appears he was thrown from the truck through the front windscreen. As a result of being thrown through the windscreen Mr Smith suffered multiple injuries that, assuming he was alive when they were caused, would have rapidly and inevitably led to death. 198 The unchallenged evidence in relation to this issue is found in the autopsy report of Dr Timothy John Lyons, medical practitioner. Dr Lyons performed the autopsy on the body of Mr Smith on 16 June 2005. In his report he expressed the following opinion: In my opinion, based on what I observed myself, my experience and training and the information supplied to me I am able to make the following comments in relation to the death of this 35 year old man, Darren SMITH. 1. This man had a pattern of multiple injuries that would have rapidly and inevitably led to death. The exact sequence of events leading to death is unknown, however, this pattern of injuries is consistent with a crush type injury. 2. Histology was non-contributory. 3. There were no significant natural disease processes. 4. Toxicology was non-contributory. 199 Based on this unchallenged evidence I find beyond reasonable doubt that Mr Smith suffered multiple injuries that would have rapidly and inevitably lead to death. 5. Sequence of Events Whether the retarder disengaged while the truck was descending the haul road and whether this did not occur because the truck engine overrevved or because of oil overheating. 200 I have already dealt in detail with the evidence which I have found established beyond reasonable doubt that the retarder disengaged while the truck was descending the haul road. I have also dealt with the evidence and found that the retarder did not disengage because the engine exceeded 2500 rpm (or otherwise "overrevved"). No evidence was led that the retarder disengaged because of oil overheating. 201 I therefore find, beyond reasonable doubt, for reasons expressed earlier, that the retarder disengaged while descending the haul road but it did not disengage because the truck engine "overrevved", nor did it disengage because of oil overheating. The retarder disengaged because the engine stopped running. It did not disengage because Mr Smith had his foot on the accelerator. This proposition is incompatible with my finding concerning the blueing on the left hand rear disc brake. That finding was that Mr Smith was attempting to apply the service brakes while the truck was descending the haul road. Whether the blue mark on the left hand rear disc was caused by the brake being superheated by its application prior to the truck becoming airborne. 202 For reasons earlier expressed in this judgment this fact has been made out by the prosecution beyond reasonable doubt. Whether since the brakes were applied while the truck was descending it follows that Mr Smith was not consciously or unconsciously accelerating and by so doing deactivating the retarder since he could not have been both braking and accelerating. 203 Again, for reasons earlier expressed in this judgment, I have found beyond reasonable doubt that the brakes were applied while the truck was descending the haul road. It follows from this finding that Mr Smith was not consciously or unconsciously accelerating and by so doing deactivating the retarder since he could not have been both braking and accelerating. Whether the engine stopped while Mr Smith was descending the haul road immediately before the accident. 204 Again for reasons earlier expressed in this judgment this matter has been made out by the prosecution beyond reasonable doubt. Whether there was damage to the radiator and radiator fan consistent with the engine having stopped prior to the impact on the embankment. 205 The evidence with regard to the damage to the radiator and radiator fan, which Mr Sunol said was minimal, established that the engine stopped prior to the impact of the truck on the embankment. I have made this finding, based on the evidence canvassed in some detail in this judgment, beyond reasonable doubt. Whether the most likely explanation for why the engine stopped was that it ran out of fuel, or because a wire leading to the emergency stop switch was arcing on the hole while the wire went through. 206 As I have already found, the probable explanation for why the engine stopped running prior to its plunge over the embankment was that it ran out of fuel. 207 One alternative explanation advanced concerned the wire leading to the emergency stop button which was damaged and showed signs of arcing on the hole where the wire went through. Mr Sunol's conclusion with regard to this matter was that it was "probably unlikely" that the arcing of the wire was the cause of the engine stopping on the day of the accident. Whether upon the retarder disengaging the truck was in a runaway condition and as a consequence of the engine stopping had no effective steering (because the accumulator was not functional). 208 Based on reasons earlier expressed in this judgment I have found beyond reasonable doubt that the engine stopped while descending the haul road, and as a consequence of the engine stopping the retarder had disengaged. In addition I have found that the truck had only three effective brakes and could not have been brought to a halt. It follows from these matters that the truck may be described as being in a runaway condition on its descent down the haul road. I have also found beyond reasonable doubt that the truck had no effective steering because the accumulator was not functional. 6. Pre-start check sheets - Particular C Whether Hunter Quarries failed to take steps sufficient to ensure operators undertook daily pre-start check sheets on each occasion that they drove Terex trucks 209 The prosecution seeks to rely on an asserted failure by Hunter Quarries to take "steps sufficient" to ensure operators undertook daily pre-start check sheets on each occasion that they drove Terex trucks. The evidence in this regard was that no operators' pre-start check sheet was recorded for the truck during the 49-day period preceding the accident, that is, between 4 April 2005 and 14 June 2005, except for three occasions. Those three occasions have been earlier referred to. Mr Smith completed one pre-start checklist for the truck on 4 May 2005. The operator "Les" completed two pre-start checklists on 8 and 9 June 2005. 210 According to Mr Badior, prior to the accident completion of the pre-start checklist was not mandatory. Mr Badior had informed Mr Taylor that the mobile plant maintenance and service requirements were to be recorded daily by the plant operators in the daily pre-start checklists and placed in a tray in the employees' meal room. Mr Badior said he would would then collect them and review them on a weekly basis. One copy was to be filed and the other, Mr Badior stated, was to be provided to Mr Taylor. At the time of the accident, the engine hours of mobile plant were also to be recorded in the pre-start checklist. The hours were taken from the monitor in the truck and a sticker placed on each truck noting when the next service was due. 211 Mr Badior said he had spoken to Mr Smith on only one occasion about his failure to complete the pre-start checklist forms. The evidence established that Mr Badior did not adhere to the system for completing pre-start checks when he operated the truck. 212 The system, had it been followed, would appear to be adequate. It was not, however, followed by the defendants. This is apparent by reason of the paucity of pre-start checklist records between the period 4 April 2005 until 14 June 2005. Given this state of affairs, I conclude beyond reasonable doubt that Hunter Quarries failed to take steps sufficient to ensure that operators undertook daily pre-start check sheets on each occasion they drove the Terex trucks. Whether completion of the pre-start checklist on the day of the accident would (or should) have identified the following additional defect: the loss of air pressure in the air circuit 213 According to the defendants, whether Mr Smith would have identified the loss of air pressure in the air circuit was dependent upon the size of the air leak and how quickly the air pressure was dissipating. No further details were provided as to why this should be so. According to Mr Sunol, completion of the pre-start checklist for the truck on the day of the accident would have identified the loss of air pressure in the air circuit by turning the engine off and carrying out checks for loss of pressure. 214 It will be recalled from the evidence examined thus far that the performance of the truck's service brakes was reduced because of three air leaks affecting the front brake air circuit. The first of these emanated from the split air hose which went from the front brake air reservoir to the front emergency relay valve. I found that the leak in the split air hose had existed for some time before the accident. It was an agreed fact that the operation of the air-over-hydraulic braking system will be (or would have been) impaired by the existence of air leaks anywhere within it. 215 The second leak (also found to have pre-dated the accident) was the air leak on the retarder valve. According to Mr Sunol, during the testing of the valve, he observed and heard what he described as a "significant air leak" internally within the retarder activation spool upon its activation. He concluded that the air leak would result in a loss of air pressure from the main air reservoir. Mr Lewis conducted the testing of the retarder valve. His observations were the same as those of Mr Sunol. In addition, Mr Lewis described the leak as a, "large air leak at 20 psi". I found, beyond reasonable doubt, that the pre-existing leak on the retarder valve (which operated from the same air pressure circuit) would have caused a further reduction in air pressure and a resultant loss of braking performance of the truck. The third air leak was the leak through the front brake intensifier as a result of a worn hydraulic seal. 216 It seems reasonable to conclude that the combined effect of the three air leaks in the air pressure circuit (one of which was described as a "large air leak") resulted in a greater loss of air pressure than would have otherwise been sustained by the presence of only one air leak. It does not follow from this that the size of the air leaks, or the rate of dissipation, (if it were indeed necessary to establish these matters in order to identify the loss of air pressure) would have facilitated the detection or identification of the loss of air pressure if a pre-start check had been performed on the day of the accident. I have no reason to doubt, however, Mr Sunol's view (which was not the subject of cross-examination) that the loss of air pressure would have been identified by turning the engine off and checking. I therefore find, beyond reasonable doubt, that completion of a pre-start checklist for the truck on the day of the accident would (or should) have identified the loss of air pressure in the air circuit. 7. Maintenance of the truck - Particular D Whether the defendants either knew that Mr Taylor was not doing maintenance in accordance with the truck maintenance guidelines and requirements, or failed to take appropriate steps to check what maintenance was being carried out 217 Mr Badior, in his affidavit, said that Mr Taylor was engaged by Hunter Quarries in March 2004 to provide servicing of and repairs to the Terex trucks. Mr Badior gave Mr Taylor the truck operation manual. Mr Badior also said he told Mr Taylor that the quarry's mobile plant, maintenance and service requirements were that the operators were to record, on a daily basis, the pre-start checklists and place them in a tray in the employees' meal room. Mr Badior would then collect the sheets and review them on a weekly basis. One copy would be provided to Mr Taylor. The engine hours of mobile plant were also recorded in the pre-start checklist and a sticker was placed in each truck noting when the next service was due. Mr Taylor was also to complete maintenance cards showing what maintenance he had carried out and when it was carried out on each piece of equipment. Mr Badior said that on every Monday morning he would read the maintenance cards completed by Mr Taylor. He also said that at no time had Mr Taylor raised with him that he was unable to perform the maintenance adequately. Nor had any employee raised with him anything concerning the standard of maintenance provided by Mr Taylor prior to 14 June 2005. 218 In oral evidence, Mr Badior said that he gave Mr Taylor the maintenance manual for the Terex trucks. The maintenance manual under the heading "Miscellaneous Servicing" directed that a service was to be carried out on the trucks monthly, or every 250 hours. The manual also set out what checks had to be done at those times. The manual also directed that a service was to be carried out every six months, or every 1000 hours on various component parts of the truck. An annual service, or 2000 hours, was also to be carried out of other component parts of the truck listed or itemised, in the manual. Mr Taylor's maintenance cards revealed that between the period 3 March 2004 until 8 June 2005, Mr Taylor only performed four 250-hour services on the truck involved in the accident, and no 1000 or 2000-hour services were performed. Between the period 3 May 2004 and 3 June 2005, Mr Taylor only performed four 250-hour services on truck No 27. Again, no 1000 or 2000-hour services were performed. Moreover, the cards revealed that the 250-hour services were done about 400 hours apart. 219 Mr Badior, in cross-examination, was asked whether he knew that Mr Taylor was only doing 250-hour services. Mr Badior replied that he, "had an inkling". The response does not sit comfortably with Mr Badior's affidavit evidence in which he said that every Monday morning he read the maintenance cards completed by Mr Taylor. Mr Badior was cross-examined about this particular matter. His attention was directed to the maintenance cards completed by Mr Taylor for the truck involved in the accident. The following exchange occurred: Q. You will see there on the 15th of the fourth, we may take to be 04, that there was a service which involved changing some filters, addition 40 litres of oil, correct? Replacing caps, claimed water leak and tightening fan belts. Correct? A. Correct. Q. This was basic service, wasn't it? A. Yes. Q. The next one is recorded on the 9th of the seventh and it would look to nearly 500 hours later. Am I reading that correctly, 6259 hours for the 15th of the fourth, 6710 for the ninth of the seventh, not quite 500, 400-odd hours. Is that right? A. That is right. Q. It would seem that, well you can read for yourself what was done there. In fact, you were present when I took Mr Taylor through this, were you not? A. I was, yes. Q. And there is over the page 196 in the bottom right-hand corner, 250-hour service for the sixth of the 10th, 7132, again another 300, 400-odd hours, yes, 422 hours later. Is that right? A. Yes. Q. You see, if you were getting these documents over time, as you say in paragraph 99, presumably you could see these things for yourself as we see them now. What did you do about it? Was that a satisfactory situation as far as you were concerned? A. After reviewing this work, the sheets, after the incident it certainly was not satisfactory, no. Q. But you see then how did you come to be telling the court, paragraph 99, that, "On Monday after servicing I would read the maintenance cards and his bill itemising the servicing". Does that mean that you were reading it without noticing the very things that I am pointing out to you now or does it mean that you made a mental note that you need to do something about it? Was it satisfactory so far as you were concerned? A. It certainly was not satisfactory. 220 Mr Badior also gave evidence that he had looked at the maintenance requirements set out in the Terex maintenance manuals. He also said that he looked at the material at the end of the manual to ascertain what was required in terms of servicing the trucks and printed off the information. 221 It follows from Mr Badior's evidence that he must have been aware that maintenance of the truck was not being done in accordance with the maintenance manual and did not take steps to remedy that position. Mr Badior agreed during cross-examination that he was responsible for the service systems as they existed at the quarry. I find, therefore, beyond reasonable doubt, that the defendants knew that Mr Taylor was not doing maintenance in accordance with the truck maintenance guidelines and requirements, prior to the accident. Summary of disputed facts established beyond reasonable doubt 222 In summary, I have found established by the prosecution, beyond reasonable doubt, the following disputed facts: (1) Hunter Quarries was in possession and aware of the contents of the Minerals Industry Safety Handbook prior to 14 June 2005; (2) The majority of the berms on the haul road were not at or above the recommended height of half the wheel height of the Terex 28 truck; (3) There were parts of the haul road where there were no berms (that is, they were not continuous); (4) The presence of the oil mixture on the right-hand centre brake precluded it from functioning effectively; (5) The level of brake fluid in the front brake reservoir was very low in that it was at least as low as the centre discharge pipe as a result of an internal leak through it, and this low fluid level operated to render the two front brakes effectively inoperable; (6) There was a pre-existing air leak on the front brake air circuit from a split in the air hose which affected the pressure in the main air reservoir. (7) The pre-existing leak on the retarder valve would have caused a further reduction in air pressure and a resultant loss of braking performance of the truck. (8) The extent to which the park brake was out of adjustment would have removed the capacity of the park brake to hold stationary the loaded truck on the haul road and would have provided no braking force in the event of an emergency. (9) Because of equipment defects at the time of the accident, only three of the disc brakes were working to their design capacity and the performance of those three brakes was reduced due to the air leaks in the braking system. (10) On the day of the accident, had the engine failed for any reason while descending, the air compressor would have ceased to operate, the retarder would have disengaged, and within a very short period the air pressure in the braking system would have dropped to a point where the brakes could not bring the truck to a halt. (11) The Terex maintenance manual states that nitrogen gas pressure can be checked using a simple gauge mechanism. (12) No checks of the nitrogen gas pressure (in accordance with the Terex maintenance manual, using a gauge) were conducted after March 2004. (13) At the time of the accident, the emergency steering accumulator was not functional as it contained no pressurised nitrogen gas. (14) The loss of nitrogen gas was due to the absence of maintenance. (15) Mr Smith failed to carry out tests on the operating condition of the steering accumulator, apart from one test performed by him on 4 May 2005. (16) Mr Smith suffered multiple injuries that would have rapidly and inevitably lead to death. (17) The retarder disengaged while the truck was descending the haul road. This did not occur because the truck "overrevved" or because of oil overheating. (18) The blue mark on the left-hand rear disc was caused by the brake being superheated by its application prior to the truck becoming airborne. (19) Since the brakes were applied while the truck was descending, it follows that Mr Smith was not consciously or unconsciously accelerating and by so doing deactivating the retarder since he could not have been both braking and accelerating. (20) The engine stopped while Mr Smith was descending the haul road immediately before the accident. (21) There was damage to the radiator and radiator fan consistent with the engine having stopped prior to the impact on the embankment. (22) Upon the retarder disengaging, the truck was in a runaway condition and as a consequence of the engine stopping, had no effective steering (because the accumulator was not functional). (23) Hunter Quarries failed to take sufficient steps to ensure operators undertook daily pre-start check sheets on each occasion that they drove the Terex trucks. (24) Completion of the pre-start checklist on the day of the accident would (or should) have identified the following additional defect: the loss of air pressure in the air circuit. (25) The defendants knew that Mr Taylor was not doing maintenance in accordance with the truck maintenance guidelines and requirements. Other findings made about matters in dispute 223 I have also found that the probable explanation as to why the engine stopped while descending the haul road was that it ran out of fuel. D. Nature and quality of the offences 224 A review of the evidence led during the proceedings leads to the conclusion that the objective seriousness of the offences is very high. 225 It is unnecessary to repeat in detail the evidence reviewed and my findings with regard to that evidence. I rely on my analysis of the evidence and findings made in the earlier parts of this judgment in assessing the objective seriousness of the offences. 226 The haul road had an unsafe design. The section of road leading down to the embankment, which descended at a rate of 20 per cent, or more, required adequate measures to obviate the risk of a descending truck which was out of control and unable to negotiate the left-hand bend. In particular the height and continuity of the berms at the area where the truck left the embankment were inadequate to restrain an uncontrolled truck. 227 According to Mr Badior various discussions were held with quarry personnel and DPI inspectors, Messrs Healey and Chilman. Mr Badior said that Mr Chilman visited the quarry on 22 April 2005 at which time the haul road had been completed and was in use between Bench No 1 and No 4. Mr Chilman at that time, according to Mr Badior, did not raise any issues concerning the design of the haul road. Mr Chilman in fact invited Mr Badior to address an industry group about how to develop a quarry. If, the defendants assert, the defects in the haul road were so obvious why then did not one or more experienced and qualified DPI officers bring up the matters or issue some written directions? 228 A closer look at Mr Badior's evidence on this issue however reveals that Mr Badior referred to only one DPI inspector (Mr Chilman) who actually saw the haul road prior to the accident. Mr Badior did not say that the purpose of Mr Chilman's visit was to inspect the haul road. It was not suggested that Mr Chilman attended with the purpose of conducting an audit or inspection of the quarry, or of the haul road in particular. There was an audit of the quarry conducted by a mines safety officer, Matthew Barnes, on 23 July 2003 and a subsequent audit was also conducted by Mr Barnes on 4 April 2005. In oral evidence Mr Badior confirmed that the references to "audit" in his affidavit meant a desk audit. The reference to "inspection" in the affidavit, Mr Badior said, referred to the inspection of plant and equipment at the quarry by DPI inspectors on 15 November 2002, 15 and 16 April 2003, and 1 March 2004. It would appear however from Mr Badior's affidavit that the haul road was not completed until either late 2003 or early 2004. In any event Mr Chilman's failure to comment on safety issues with regard to the design of the haul road during his visit on 22 April 2005 does not detract from the statutory obligation on Hunter Quarries as an employer to ensure that the design of the haul road was safe. 229 With regard to the inadequate bunding on the haul road I have found that the majority of the berms were not at or above the recommended height of half the wheel height of the truck as set out in the Handbook. I have also found that Hunter Quarries was in possession and aware of the contents of the Handbook prior to 14 June 2005. According to Dr Rechnitzer the recommended height for berms on a haul road set out in the Handbook is too low to stop a loaded runaway truck. Dr Rechnitzer concluded that berms even at axle height would have been inadequate. 230 As for the state of the service brakes on the truck at the time of the offences, the evidence established that the brakes were in such a state of disrepair that they could not stop the truck on the haul road. It will be recalled that the equipment defects and the presence of the air leaks in the braking system meant that the truck prior to the accident had only three effective brakes. The park brake was also so out of adjustment that it was incapable of providing any braking force on the haul road. Mr Smith had therefore only half the brakes at his disposal when the engine stopped and the retarder disengaged. This combination of events meant that the truck could not be brought to a halt and would have been in a runaway condition. I have also found that Mr Smith was attempting unsuccessfully to apply the brakes on the truck's descent, as evidenced by the "blueing" of the left-hand rear disc. I agree with the prosecution's submission on this issue that the fact that the brakes were in such a bad state they could not stop the truck on the haul road places the offences at the highest level of seriousness. 231 With regard to the truck's emergency steering capability it was an agreed fact that the accumulator was not functional at the time of the accident. 232 The function of the accumulator could be checked by means of a relatively straightforward procedure which was set out in the Terex maintenance manual and which involved using a simple gauge mechanism. Notwithstanding this, Mr Badior regarded the process associated with charging the accumulator with nitrogen gas as dangerous and something that should not be entrusted to an operator. No steps appeared to have been taken however after March 2004, when Mr Taylor's services were engaged to check the nitrogen gas pressure using a gauge. Mr Taylor confirmed in his evidence that he had not undertaken the task and had never been instructed to do so. At the time of the accident there was no pressurised gas in the accumulator. It was conceded that the loss of gas was due to the absence of maintenance. 233 There was another procedure however that could be used to test the operation of the accumulator. That procedure involved turning the steering wheel in both directions after the engine had been turned off. The evidence established that the operators at the quarry were trained to perform this procedure prior to the accident. Mr Warden incorporated the procedure into his pre-start checklist from October 2004 (at least on truck No 27). The procedure was set out in the truck's operator's Handbook. It will be recalled that the truck driven by Mr Smith did not have a correct operator's Handbook in it prior to the accident. Mr Smith according to the records completed only one pre-start checklist on 4 May 2005 in which he ticked the box indicating that he had checked the steering and it was in good order. Mr Smith had been spoken to by Mr Badior on one occasion about his failure to complete the pre-start checklist forms. It may be inferred from the evidence concerning the training given to the operators on how to test the operation of the accumulator and the indication in Mr Smith's completed pre-start checklist that the steering was in good order, that he was aware of the alternative procedure for testing the steering and performed it on one occasion. The fact that the accumulator was not functional for some undisclosed period prior to 14 June 2005 (but presumably after 9 June 2005 when the operator "Les" completed a pre-start checklist indicating that the truck's steering was in good order), combined with Mr Smith's failure to complete any pre-start checklists after 4 May 2005 suggests that he did not test the operation of the accumulator after that date, although he knew how to perform the task. 234 The fact that there was an alternative procedure for testing the emergency steering in which operators including Mr Smith had been trained and used on some occasions serves to mitigate to some extent the objective seriousness of the failure associated with the defective emergency steering. 235 The practice of completing the pre-start checklists however was not enforced. The paucity of records attests to the defendants' failure to take steps to ensure that there was adherence to the practice. Mr Badior at least on one occasion did not complete a pre-start checklist. It does not appear that Mr Badior viewed the practice as being of any great importance. His evidence was that he, "didn't place much importance" on the fact that Mr Smith was not completing pre-start check sheets. He did not tell Mr Smith that their completion was mandatory. He said that he encouraged the operators to complete them but that it was not mandatory to do so. Mr Badior also said that he collected the documents in order to go through them on a weekly basis. The evidence that only three were completed during the period between 4 April 2005 until 14 June 2005 adds weight to the suggestion that Mr Badior ascribed no great importance to the practice. 236 Had the defendants taken steps to ensure that the daily check-list was completed on the day of the accident then the following defects would (or should) have been identified: a. the loss of brake fluid in the front brake fluid reservoir - identified by checking the fluid level; b. the loss of gas pressure in the steering accumulator - identified by carrying out a steering shutdown test or by coupling the system to an appropriate gauge; c. the broken warning light on the steering circuit - identified by noticing its failure to illuminate when the ignition was turned on; d. the loss of service brake performance - identified by carrying out a brake test; e. the oil leak from the right hand centre wheel - identified by visual inspection; f. the park brake out of adjustment - identified by carrying out a park brake test, by visual inspection of the park brake mechanism, or by investigating the cause of the malfunctioning warning light. 237 The nature of the defects, their number, and the relatively straightforward procedures available to have identified and recorded them, underscores the importance of completing the check-lists on a daily basis. 238 Hunter Quarries' failure to have in place an adequate maintenance management system gave rise to the risk that the truck would develop faults. The faults, including the defective brakes and inoperable emergency steering system, which were the direct result of an inadequate maintenance system, gave rise in turn to a serious and obvious risk to the safety of any person operating the truck. 239 Mr Badior engaged the services of Mr Taylor. He knew that Mr Taylor lacked expertise or experience relevant to the servicing of the Terex off-road dump trucks. He also knew that Mr Taylor was not following the servicing schedules set out in the Terex maintenance manuals. The maintenance cards filled in by Mr Taylor, which Mr Badior said he checked every Monday morning, showed that required servicing was not being conducted and that 250 hour servicing was being done about 400 hours apart. 240 Mr Taylor in my view was clearly not competent to perform adequate servicing of the Terex trucks. He was not, for example, familiar with the workings of the steering accumulator and did not know that it was designed to contain compressed nitrogen gas to enable the truck to be steered in an emergency. The defendants advanced as mitigation only that Mr Taylor's representations as to his competency were untrue and that by relying on those representations without further checking, the defendants thereby exposed themselves to a breach of the Act. It is difficult to reconcile this particular submission with evidence which included the agreed fact that Mr Taylor lacked previous experience in servicing Terex off-road dump trucks and lacked the knowledge to identify all the defects requiring repair. Mr Badior in his evidence said that he knew Mr Taylor had some experience in off-road trucks. This was contrary to the evidence that Mr Taylor had not done work of that nature before and he had informed Mr Badior of that fact. It is also not consistent with the agreed facts set out above. It follows from this that the defendants' submission concerning mitigation on this issue is rejected. The defendants must have been aware that Mr Taylor's lack of experience and expertise were such that he was not competent to adequately service the truck. 241 One particular aspect of the failure to ensure an adequate maintenance system was in respect of the brakes. Mr Taylor gave evidence that Mr Badior knew he was not checking the brake pads at every service because Mr Badior knew that could only be done by removing the wheels. Mr Badior conceded that he knew Mr Taylor did not have the capacity to remove the wheels to inspect the brakes himself. The Terex maintenance manual required service brake pads to be checked at a 250 hour service. Mr Badior was aware of those requirements (for reasons earlier stated). Mr Badior was therefore aware that Mr Taylor was not checking the brake pads as part of the 250 hour service. He could only do the service when an outside firm was brought in to assist in removing the wheels. 242 The maintenance system which was in force during Mr Taylor's engagement relied on Mr Taylor being instructed as to what to do. This may be contrasted with an earlier system in place between December 2003 and March 2004 when AMMESA carried out the servicing and repairs of Terex trucks. When AMMESA did the servicing they would call Mr Badior and ask him for the engine hours on the mobile equipment so that they could schedule services accordingly. After the accident Westrac, BT Equipment and Komatsu undertook the servicing of the mobile equipment. Westrac created a list of all plant and equipment with serial numbers onto which engine hours are written and faxed back to Westrac, for the purpose of appropriately scheduling services. This system, which facilitated the servicing of the Terex trucks in accordance with the regime set out in the manual could have been, but was not, implemented during the period of Mr Taylor's engagement. 243 The defendants' culpability in respect of the maintenance system may be summarised as follows: a. the defendants knew the pre-start checks were not being properly completed and yet did not insist that they were completed; b. the defendants knew that Mr Taylor had limited capacity to service and repair their mobile plant when they hired him; c. the defendants knew from maintenance records that the required servicing was not being conducted and that 250 hour services were being done about 400 hours apart; d. the defendants knew, or should have known, that Mr Taylor was not checking the service brakes because either he told them he was not or because they knew that he could only do so when an outside specialist was called in to remove the wheel and they knew that was not occurring; e. the defendants created a maintenance system which relied on Mr Taylor being instructed as to what to do, rather than one that scheduled automatic servicing based on engine hours (as adopted earlier with AMMESA and since with Westrac); f. the failure to properly maintain was something that arose as a result of a direct failure to have a proper maintenance management system that would ensure defects were noted as they arose and ensure that maintenance was being done on the truck as required. E. Consequences of breaches of the 2000 Act 244 Offences under s 8(1) require proof of a causal nexus between the alleged failure to ensure safety and the resultant or consequent risk of injury, as opposed to actual injury: South Sydney Junior Rugby League Club Ltd v WorkCover Authority of NSW (Inspector Bestre) (2005) 142 IR 373 at [42]; Daly Smith Corporation (Aust) Pty Ltd v WorkCover Authority (NSW) (Inspector Mansell) (2006) 151 IR 173 at [37]; Rail Infrastructure Corporation v Inspector Victor Page [2008] NSWIRComm 169 at 72. 245 The likely or probable consequences of the defendants' breach of the 2000 Act is another factor which the Court is required to take into account in its assessment of the objective seriousness of the offences. The focus is on the seriousness of the breach not the seriousness of the actual injury, although a serious injury may manifest the degree of seriousness of the risk to safety: Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17]-[18]. See also Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [94], [95]; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Anor (2000) 95 IR 383 at 428; Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [32]; Inspector Mayo-Ramsay (WorkCover Authority of NSW) v The Crown in the Right of the State of New South Wales (NSW Fire Brigades) (No 2) [2007] NSWIRComm 168 at [34]; Inspector Legge v Intercast & Forge Pty Ltd [2006] NSWIRComm 182 at [26]; Inspector Jennifer Short v The Crown in the Right of the State of NSW (NSW Police) [2007] NSWIRComm 138 at [21]. 246 I find that Mr Smith's death manifested the degree of seriousness of the relevant risk to safety. The risk to safety arose as a direct result of Hunter Quarries' failures as particularised, namely those relating to the unsafe haul road design, the defective brakes, the non-functional emergency steering and other failures associated with an inadequate maintenance management system. These failures, either alone or in combination, resulted in the descending truck becoming out of control on the haul road (the relevant risk) and plunging over the embankment, fatally injuring Mr Smith. F. Conduct of Mr Smith 247 While the statutory obligations under the occupational health and safety legislation extend to the requirement on the part of a defendant to ensure the safety of the reckless, careless, inattentive and even disobedient worker, the actions of a worker who places himself or herself in a situation of danger because of some error or careless act on his or her part may impact on the degree of culpability of the person or entity with responsibility for the safety of that worker: Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 at 145; WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2005) 137 IR 462 at [40] [41]; Inspector Colin Wall v Orica Australia Pty Limited [2009] NSWIRComm 146 at [15]. 248 According to the defendants Mr Smith's conduct, namely his negligence and disobedience, on the day of the accident, reflects on the degree of culpability of the defendants which in turn operates in mitigation of penalty. Two matters upon which the defendants placed reliance in support of the submission concerned Mr Smith's opportunity to re-fuel during the course of the day, an opportunity it was suggested was not taken, and, his failure to wear a seat belt at the time of the accident. 249 The evidence suggests that Mr Smith had the opportunity to re-fuel the truck but did not do so. The evidence established that the low fuel warning light and fuel gauge were functional at the time of the accident. I have made a finding that the probable explanation as to why the engine stopped while descending the haul road was that it ran out of fuel. If one proceeds upon the basis that the truck did in fact out of fuel at some point shortly before the accident, it would follow that Mr Smith either ignored the warning light or did not see it. According to the defendants, given Mr Smith's mechanical training and his experience it is highly unlikely that he would have ignored it or not seen it. Whatever the reason it was incumbent upon Mr Smith as I understand the evidence to re-fuel the truck whenever necessary. Mr Smith, like all the operators was paid an extra half hour to re-fuel. According to the defendants, at some point in time on the day of the accident, Mr Smith and another employee, Mr Namakowski, were carting overburden from Bench No 3 to a dump point during which both drivers had to pass the fuel bowser. Just prior to the accident there had been a problem encountered at the crushing plant and hauling ceased for about an hour. In that time Mr Smith had the opportunity to re-fuel the truck and could have re-fuelled it if he felt it was necessary. 250 The difficulty the defendants face here, however, is the problem of apportioning responsibility on the basis of the likelihood or probability of an event having occurred, here, that the truck ran out of fuel at some point shortly before it went over the embankment. What the Court has been asked to do by the defendants is to find that Mr Smith, as the person responsible, failed to re-fuel the truck when he had the opportunity to do so, and that this finding operates, in turn, in mitigation of penalty. The basis upon which the Court has been asked to make the finding rests however on the probability or likelihood that the truck ran out of fuel. I am therefore unable to find, on the balance of probabilities that Mr Smith's conduct in failing to re-fuel the truck operates in the defendant's favour to mitigate the objective seriousness of the offences. 251 The defendants also relied on the unchallenged fact that Mr Smith was not wearing his seat belt at the time of the accident although a seat belt was fitted in the cabin of the truck. As a result, Mr Smith was thrown through the windscreen and landed on the rocks on the face of the embankment. 252 While it may be known that Mr Smith was not wearing his seat belt at the time of the accident there was no evidence which might have indicated why he was not wearing it. According to the defendants the fact that he was not wearing it was due to a casual act of negligence, or disobedience. Mr Smith had been warned to wear his seat belt and tool box reminders had been given. An alternative explanation as to why Mr Smith may not have been wearing his seat belt at the time of the accident may be because he attempted in the last few remaining seconds to escape the runaway truck heading for the embankment. There was no evidence to support this suggestion which amounts to no more than conjecture. Equally, there was no, or insufficient, evidence to support a finding that Mr Smith's failure to wear his seat belt constituted a casual act of negligence or disobedience. 253 Based on these matters I am unable to find, that Mr Smith's conduct operated to mitigate the objective seriousness of the offences. G. Reasonable foreseeability of the risk to safety 254 An assessment of the objective seriousness of the offences also requires a sentencing court to direct attention to whether the risk to safety was reasonably foreseeable. Findings that the risk to safety was obvious or reasonably foreseeable and, one against which appropriate measures were not taken even though such measures were available and feasible, will compel the conclusion that the offences were serious: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464; Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 70; Cahill v State of New South Wales (Department of Community Services) (No 4) (2008) 182 IR 231 (at [39]). 255 The risk to the safety of Mr Smith, by reason of the truck becoming uncontrolled on its descent down the haul road, arose from the failures as particularised. This risk in my view was reasonably foreseeable having regard to the following factors: a. operating heavy off-road trucks on a haul road that had inadequate berms, a grade significantly above the recommended grade of 10 per cent, and a significant curve above an embankment, gave rise to a serious risk to the operator's safety should an operator loss effective steering or brakes or both; b. failure adequately to maintain the emergency steering accumulator would result in an operator being unable to steer the truck if the hydraulic pump stopped for any reason; c. failure adequately to maintain the brakes would create a risk that an operator would be unable to stop the truck whilst descending; d. failure to ensure that pre-start checklists were completed would result in faults, including safety-critical faults, not being identified; e. failure to have an adequate maintenance management system would result in faults, including safety-critical faults, in respect of the emergency steering accumulator and the brakes not being identified and rectified. 256 The defendants referred to "JSA's" (Job Safety Analysis forms) prepared by Hunter Quarries, and the risk assessments recorded on the JSA's as mitigating the objective seriousness of the offences. The submission was made in the following way: As to the foreseeability of a truck becoming uncontrolled the Defendants rely on the risk assessments carried out in the JSA's as mitigation in that while the risk was an identified risk the measures put in place to control the risk in terms of truck maintenance were not implemented sufficiently. Dr Rechnitzer noted that in relation to the site risk assessments the observation that [sic] of Mr Franklin that the risk of hauling downhill on a grade of 20% was not assessed. He also noted that while it appears the risk was not directly addressed, given the specified capability of the Terex truck to haul up to 37% grades fully loaded, the risk of the slope was not the risk it would otherwise be to different vehicles. In addition, the probability ranking given a 'low' was based not only [sic] the control measures available but also on the prior experience of the persons undertaking the assessment. Mr Badior stated that he had never encountered a runaway truck in all of his experience in quarrying. Nor had any other employees. The Terex trucks were purchased in 2003 and were 4 years old at that stage. The trucks were purchased at the cost of $180,000 each. The Defendants also rely on the fact that the Handbook only specified the height of a berm to be the height of the axle. Even if that guideline had been complied with the report of Dr Rechnitzer makes it clear that significantly larger berms are required to absorb the energy of a laden runaway truck. The Prosecutor could point to no alert issued by the DPI as to this requirement nor to any directions or notices it had issued to the Defendants prior to the incident. Further, it is not alleged that all of the berms were inadequate. 257 It is difficult to see how the identification in the JSA's of the risk of a truck becoming out of control followed by a failure to implement the control measures set out in the JSA's could operate in the defendants' favour in mitigation of the objective seriousness of the offences. If the reference in the defendants' submissions to "measures put in place to control the risk in terms of truck maintenance" is a reference to the control measures in the JSA for "Off Road Truck Operation in Quarry" dated 5 November 2003 then there is nothing in the control measures dealing specifically with truck maintenance. The Court's attention was not directed to any particular JSA relied upon by the defendants or to what measures, if any, had been taken by the defendants with regard to truck maintenance generally. The maintenance services performed by Mr Taylor, under the instruction of Mr Badior on behalf of the quarry have been dealt with in those sentencing reasons, and need no repetition. The submission that the truck had a specified capability for hauling, fully loaded, on a 37 per cent gradient fails to take into account the defective condition of the truck at the time of the accident. 258 In the JSA dated 5 November 2003 a potential hazard identified with regard to driving a Terex truck to an instructed position in the loading area was allocated a risk level of "D5(low)". The control measures were "use low gear on step sections", and, "place berm wall on sides of ramps". The persons nominated as responsible for these measures were the drivers. 259 The reference to "use low gear" may be a reference to operating the truck using the retarder. Given the circumstances of this case, the use of the service brakes, being in such a state of disrepair and with only three brakes functioning, would not have assisted Mr Smith. The evidence as I understand it has not suggested that drivers were responsible for placing berm walls on the side of ramps. The fact that Mr Badior had never experienced an incident concerning a runaway truck in any other quarry does not impact on my reasons and finding that the risk to safety occasioned by the out-of-control truck at the Karuah Quarry was reasonably foreseeable. 260 As to the relevance of the Handbook and its recommended heights for berms the evidence has shown that those recommended heights were not complied with at the quarry. The evidence as to the involvement of the DPI at the quarry, in particular with regard to the haul road, has been dealt with and need not be repeated. 261 I am not satisfied therefore that these matters raised by the defendants operate to mitigate the objective seriousness of the offences. H. Remedial measures available 262 The existence of simple and straightforward remedial steps that could have been taken by the defendants to avoid the risk to safety is also relevant to an assessment of the seriousness of the offences. The prosecution submitted that a number of such steps or measures were available to the defendants, but were not taken or implemented by the defendants prior to the accident. These were: a. The Mineral Industry Safety Handbook set out straightforward requirements relating to design of a haul road, which requirements were not followed. After the accident a new haul road was constructed. b. Operators should have been required to check the steering accumulator by a simple daily test, namely turning the steering wheel after the engine had been turned off. The method contained in the operator manual to test for pressure in the emergency steering accumulator with a gauge should have formed part of the preparation routine before the Trucks were operated. c. Mr Badior ought to have insisted that pre-start checklists were completed. d. The Defendants ought to have ensured that the Truck was maintained by a person qualified and equipped so to do, as they had prior to March 2004 and did again after the incident. 263 I agree with the submission and adopt the steps or measures identified by the prosecution in these sentencing reasons. I have some reservations about whether the Handbook does set out straight-forward requirements with regard to the design of the haul road. I deal with these reservations later in my sentencing reasons. The existence of the steps or measures which were readily available to the defendants prior to the accident but were not implemented, adds to the objective seriousness of the offences. I. General and specific deterrence 264 The Full Bench in Capral Aluminium Ltd v WorkCover Authority of NSW (2000) 49 NSWLR 610 at [71]-[80], dealt with the issues of general and specific deterrence. 265 The Court drew attention to a passage from Street CJ in Reg. v Rushby [1977] 1 NSWLR 594 at 597-598 that includes the following: ... One of the main purposes of punishment... is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment. In all civilised countries, in all ages, that has been the main purpose of punishment, and it still continues so. The fact that punishment does not entirely prevent all similar crimes should not obscure the cogent fact that the fear of severe punishment does, and will, prevent the commission of many that would have been committed if it was thought that the offender could escape without punishment, or with only a light punishment... 266 The Court endorsed the approach taken by Hungerford J in Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 wherein his Honour said: The fundamental duty of the Court in this important area of public concern... [is] to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. 267 The prosecution submitted that the circumstances of the case call for a need to include a significant component in the penalty for general deterrence in order to signal to operators of similar off-road vehicles the importance of ensuring the safe design of haul roads, the soundness of plant, and the importance of regular scheduled maintenance in accordance with the manufacturer's specifications. 268 For the reasons expressed by the prosecution it is my view that the principle of general deterrence must form an important component of the sentencing process here. It will be taken into account accordingly when imposing penalties. 269 The defendants have raised one issue in the context of the application of the principle which I have found persuasive and deserving of some comment. 270 There does not appear to be at the present time appropriate and sufficiently comprehensive guidelines promulgated in Australia with respect to the design of haul roads. The Handbook which superseded the Guidelines for Safe Mining July 2000, does contain a small section on haul roads. The information contained in the section is somewhat general in nature. Dr Rechnitzer provided the following comment on the section in the Handbook: The Mineral Industry Safety Handbook is the only Australian authority in New South Wales which contains a section specific to the design on haul roads. These references to haul roads are general in nature, with specific guidance given in the noted USA manuals. It appears likely from the structure of the New South Wales Department of Primary Industries website that the authoritative sources for the requirements for haul road design are, at present, in a dispersed state. This is evident from the draft nature of the MDGs , which are New South Wales authority, while the website continues to provide links to Haul Road Inspection Handbook and Design of Surface Mine Haulage Roads - A Manual (which are both US sources). 271 In addition some of the information in the Handbook may not be entirely accurate or otherwise reliable. I refer in particular to the recommendation that berms or bunding on haul roads be at "higher than axle-height" in more critical areas such as steep grades and sharp curves. According to Dr Rechnitzer this recommended height would not have restrained the truck in an uncontrolled state or arrested its progress. 272 These matters suggest that some consideration should be given by the DPI to amending the relevant guidelines in this important area. Employers and controllers of work sites where haul roads are used would no doubt be greatly assisted in their efforts to implement appropriate safety measures by the publication of material dealing directly with the issue of safety on haul roads, both locally and nationally. 273 In relation to specific deterrence the Court in Capral Aluminium noted (at [76]): ...the attitude of a defendant to questions of workplace safety and any steps taken to improve safety following an accident may be relevant to specific deterrence. Here the objective is to deter the particular offender from repeating the offence. 274 The Court also observed (at [77]): In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender ... or because the offender will not have the opportunity to commit a similar offence in the future... However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace 275 Specific deterrence must also be taken into account in this case given the continued operations of the corporate defendant at Karuah Quarry and the continued role of Mr Badior as manager of that quarry. In applying the principle however the Court will take into account in the defendants' favour the significant changes made to the systems of safety at the quarry following the accident. Those changes will be addressed in detail at a later stage of these sentencing reasons. J. Systems of work pre-accident 276 Also of relevance to the assessment of the objective seriousness of the offences is the systems of work the defendants had in place, and implemented, prior to the accident. 277 Prior to the offences, the defendants had an occupational health and safety policy set out in its Mine Safety Management Plan (MSMP). Copies of the MSMP were kept in the weighbridge, Mr Badior's office, and in the temporary lunch room. The MSMP was developed in 2002 and reviewed in September and October 2002, August 2003, and March 2005. 278 Documentation attached to Mr Badior's affidavit sworn on 2 February 2009, shows that Mr Smith received training in the operation of dump trucks on 4 February 2005. According to Mr Badior, Mr Smith was also inducted into a two-week buddy programme at the Tea Gardens Quarry prior to commencing work at the Karuah quarry. He was certified as competent to perform independent work as a mobile plant operator. 279 The quarry also had a system of assessing risks implemented through the JSAs. Draft JSAs were considered at toolbox meetings and personnel given the opportunity to provide input. Relevant training was provided at toolbox meetings in relation to all new JSAs. I have already referred to the JSA in force prior to the accident which dealt specifically with the risks associated with runaway dump trucks on the haul road. The quarry also had a system of hazard identification and reporting. This system included training in hazard identification and the determination and implementation of control measures. 280 These safety measures and other safety measures, set out in detail in Mr Badior's affidavit, which had been developed and implemented prior to the offence will be taken into account in mitigation of the penalties to be imposed. K. Post-accident changes 281 Since the accident the defendants have made comprehensive changes to the safety systems in force at the quarry. The changes are impressive and are acknowledged by the Court in mitigation of the penalties to be imposed. For convenience, the changes are summarised below: In respect of the maintenance of plant at the quarry the following steps have been taken: · All servicing is carried out by Westrac, BT Equipment and Komatsu with an automated system of scheduling services; · Weekly contact is made with the contractors to discuss scheduled hour servicing and any problems identified in the daily check sheets; · Improved record keeping of the service documentation; · Issuing of safe work permits prior to service of plant being commenced. Pre start checks are then done after this servicing; · The quarry now employs two extra staff. One is a full time maintenance supervisor and the other is an apprentice motor mechanic; · The company has the services of Mr Gerard Lane, OHS Co-Ordinator, along with three other nominated OHS personnel; · Internal audits are done on all plant and equipment by employees and Mr Lane; · External auditors, Clemco Engineering Pty Ltd, have been engaged to carry out annual audits." 282 In relation to the haul road the following steps have been taken: · immediately after the incident no employees were permitted to use the road from bench no 4 to bench no 1; · the section of the haul road that remained in use (the section below bench no 1) was surveyed before any work recommenced after the incident; · berms were constructed that exceeded the guidelines in the Handbook; · installed signage on the haul road to remind operators of the steep descent with sharp curves; the correct UHF channel to be used by operators; that seat belts are to be worn and mobile phones turned off when driving vehicles; to make proper gear selection and to use the retarder at all times and of the speed limit when operating on the haul road; · a JSA was developed and implemented for the establishment of the new haul road at the southern end of the quarry. 283 In respect of workplace inspections and auditing, the following steps have been taken: · the quarry has 3 systems of auditing: external auditing; internal auditing and workplace inspections; · scheduled and unscheduled inspections to the quarry by Mr Lane; · annual workplace inspection conducted by Mr Lane; · monthly workplace inspections. 284 In respect of training, the following steps have been taken: · all mobile plant operators were re-inducted by Hunter Valley Operator Training School and Westrac trainer starting in September 2005; · re-inducted employees on hazard reporting and developed new hazard report form; · re-instructed employees on the requirements in relation to wearing seat belts, use of mobile phones, fuelling and greasing of mobile plant; · training of all operators in Certificate II and III in Extractive Industries Operations; · OHS training for employees; · OHS externally provided training for employees; · OHS internal training for senior managers. 285 In respect of other safety initiatives, the following steps have been taken: · issued formal seat belt and phone policy; · introduced baseline drug and alcohol testing for all employees on 30 November 2006 and thereafter random testing of employees; · OHS monthly reports are completed by Mr Lane; · OHS Plan has been developed for the quarry that identifies auditing and inspections, system implementation, training, risk management program, safety bulletins, safety posters, consultation and monthly reporting; · issuing safety bulletins; · issuing safety posters; · implementation of Safe Driving Spot Inspections; · Mr Lane attends safety meetings at the quarry; · monthly management reports are compiled by Mr Badior showing implementation of plant/machinery inspections, OHS targets and documentation review. L. Pleas of guilty 286 The defendants entered pleas of guilty to amended charges on 9 October 2009, the third day of the defended hearings. It has been submitted by the defendants that they should receive the "maximum benefit" for the utilitarian value of the pleas on the basis that the amendments to the charges were significant and as such, should be regarded by the Court as new charges. 287 In Inspector Stephen Cooper v Rail Infrastructure Corporation [2008] NSWIRComm 92, I made a number of observations which I adopt in these sentencing reasons, with regard to what may be described as a "late plea" (at [50]). "... each case must be determined by reference to its own individual circumstances. Secondly, the utilitarian value of the plea of guilty focuses solely on objective considerations. The sentencing judge is not concerned with subjective considerations with regard to the aspects of the plea, such as remorse or contrition, or, the intended, as opposed to, the actual facilitation of the course of justice. Thirdly, an assessment as to whether a plea of guilty has been entered at the first reasonable opportunity, or at the earliest opportunity, where the plea is a late plea, may be relevant to the utilitarian value of the plea. In recognising this, however, it is important to emphasise that where a plea of guilty has been entered at the first reasonable opportunity, it does not confer an entitlement to a discount of 25 per cent for the utilitarian value of the plea. A rationale for this is that the delay between the time an offence is first charged, and when the plea of guilty is entered to an amended, less serious, or different charge is less advantageous to the administration of justice." 288 In WorkCover Authority of New South Wales (Inspector Ross Wolf) v South Eastern Sydney and Illawarra Area Health Service (No 3) [2007] NSWIRComm 268 at [29], I held that a late plea attracted a discount of 25 per cent based on utilitarian considerations because the plea was to an amended charge which was in substantially different terms from the original charge. 289 In R v Thomson & Houlton (2000) 49 NSWLR 383, Spigelman CJ (Wood CJ at CL, Foster AJA, Grove and James JJ agreeing) observed (at [160]) that the primary consideration in determining where in the range a particular case should fall, is the timing of the plea. At [155], his Honour made the following observation which is applicable to the present circumstances: The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial. 290 Here the pleas were entered after the commencement of the summary defended hearings. It is difficult to assess whether the pleas produced benefits (to the administration of justice) arising from the prospective length and complexity of the hearing. The sentence proceedings were heard over several days. The reason for this was that the prosecution sought to rely on additional factors in aggravation of the defendants' culpability, as it was entitled to do, and the defendants disputed the facts relied upon by the prosecution to establish those factors, as they were also entitled to do. 291 The defendants' contention, advanced in general terms only, was that the amendments to the charges were significant and should be regarded as new charges. A comparison of the two sets of charges does not bear this out. In my view, the amendments were relatively minor, resulting in the deletion of some "sub-particulars" of the multiple particulars of the offence under s 8(1) with some re-wording of other "sub-particulars" which did not change the nature of the offence in any substantial or significant manner. 292 The plea, therefore, was a late plea with some utilitarian benefit. I am not convinced that any of the matters raised by the defendants on this issue would have precluded them from entering pleas of guilty at an earlier stage in the proceedings. I assess a discount of penalty for both defendants at 10 per cent. M. Prior record 293 Neither defendant has prior convictions. They are, therefore, entitled to leniency normally extended to first offenders. The defendants submitted that the Court will find that the offences fall into the category of "uncharacteristic aberration": see Veen and The Queen (No 2) (1988) 164 CLR 465. In Veen (No 2), Mason CJ, Brennan, Dawson, Toohey JJ said (at 477): There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell (35). The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. 294 I do not understand the reference to "uncharacteristic aberration" in the passage extracted above to always apply to first offences. If this were so, then all first offences would fall into the category. This is not to say that a first offence may well warrant the finding that it was an "uncharacteristic aberration" where regard is had to appropriate information having been placed before the Court. Without any further submissions having been developed by the defendants on the issue, I am unable to properly consider the matter. 295 The above passage was considered in Anthony Keith Coleman (1991) 56 A Crim R 369 at 372 in the Court of Criminal Appeal by Carruthers J, (Lee CJ at CL, Finlay J agreeing). The judgment was brought to the attention of the Court by the defendants and relied upon by them in support of the submission. The judgment considered the extract from Veen (No 2), however, in the context of an offender with prior convictions, that is, whether the antecedent criminal history was relevant to show that what had occurred with regard to the most recent offences, could not be considered as uncharacteristic aberrations. 296 I do take into account, however, in favour of both defendants, their otherwise good character based on the material put forward on their behalf. The corporate defendant, it was said, has a strong connection with the local community and has viewed its occupational health and safety responsibilities seriously. Mr Badior has demonstrated extensive community involvement. He is a founding member of the Hunter Valley Aviculture Society which has been involved in the area for 20 years in the preservation of local bird life. As manager of the Seaham quarry in early 1990, Mr Badior arranged for the donation of 10 acres of land for the Riding for Disabled Organisation. He also arranged for a house to be re-located on this land, to be used as a caretaker house and office for the Organisation. N. Co-operation and assistance 297 The defendants have also co-operated with the DPI during the course of its investigation into the circumstances of the accident. Hunter Quarries provided assistance to its employees by way of providing formal counselling and other arrangements. Assistance was also provided to Mr Smith's family by the corporate defendant including counselling and financial assistance. O. Contrition 298 As a separate consideration from the utilitarian value of the plea, the defendants are also entitled to leniency in recognition of the remorse shown by the plea. The defendants have also expressed their sincere regret that Mr Smith was put at risk to his safety. They have accepted responsibility for the circumstances of the accident and Mr Smith's death, as evidenced by the acknowledgement of a number of deficiencies in the work practices in force prior to the accident and equipment defects in the truck, as set out in the agreed facts. P. Capacity to pay 299 The Court's attention was not directed to any specific evidence with regard to the capacity of either defendant to pay a fine. In written submissions, the defendants simply directed the Court to its submission on the size and scope of Hunter Quarries, "and other evidence before the Court". The Court was not further enlightened as to what that other evidence might be, or where it might be found. With regard to the nature and size of the quarry, Mr Badior's affidavit records that it is still in operation and employs approximately 22 staff. I infer from this that the quarry is an ongoing concern and continues to be productive. Without having been specifically directed to evidence to the contrary I am unable to consider whether either the corporate defendant or Mr Badior have the capacity to pay a fine. It was submitted on behalf of Mr Badior that he currently earns a gross salary of $68,000 per annum and owns 10 per cent of shares in the corporate defendant, but has received only low dividends from his investment. In addition Mr Badior is the sole director of a family company. This material is not sufficient to persuade the Court that Mr Badior lacks the capacity to pay a fine. Q. Exercise of discretion under s 10 300 An application was made on behalf of Mr Badior that the Court exercise its discretion under s 10 of the Crimes (Sentencing Procedure) Act 1999 (CSPA) and make an order pursuant under s 10(1) of the CSPA to dismiss the charge, or, alternatively, to discharge Mr Badior on condition that he enter into a good behaviour bond for a term not exceeding two years. 301 A number of factors were relied upon by Mr Badior in support of the application. First Mr Badior's antecedents were emphasised. He has no prior convictions, an achievement of some significance when consideration is given to the nature of the industry in which Mr Badior works, namely one that utilises heavy equipment and machinery and involves hazardous operations such as blasting. Mr Badior has also occupied a senior position of responsibility at the quarry since 1984. In addition, a number of testimonials, attached to his affidavit, attest to Mr Badior's good character. Secondly the Court was asked to consider Mr Badior's age. He is 62. He has invested two-thirds of his superannuation contributions into the quarry and the current returns on his investment are not sufficient to allow him to retire and care for himself and his wife. Thirdly the Court was asked to take into account the contrition demonstrated by Mr Badior with regard to Mr Smith's death as well as Mr Badior's excellent work record and his attention to safety matters at the quarry. 302 An order under s 10 of the CSPA is only made in exceptional circumstances: see for example WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd (2004) 136 IR 449 at [45] [50]. In my view the circumstances which give rise to the offences are such that it would be an inappropriate exercise of the Court's discretion to grant Mr Badior's application. There can be no doubt that Mr Badior is a person of good character as the character references annexed to his affidavit attest, but the fact remains that the offence under s 8(1) was objectively very serious. The Court has also acknowledged Mr Badior's sincere expression of regret for Mr Smith's death. None of these matters however are sufficiently persuasive to attract the Court's discretion in order to grant the application either under s 10(1)(a) or s 10(1)(b). The finding that an offence is objectively serious, of itself would normally preclude the application being granted. R. Penalty 303 The maximum penalty for the offence against Hunter Quarries is $550,000 and against Mr Badior is $55,000. In determining penalties against both defendants I have taken into account the objective seriousness of the offences, the maximum penalties, the factors in mitigation described above, the pleas of guilty and the absence of prior convictions. These factors have been considered by reference to the CSPA, in particular s 21A and s 22. S. Victim Impact Statements 304 During the sentence proceedings, and after the prosecution presented its case on sentence, the Court received three victim impact statements. The first was made by Mr Smith's father, Kevin Smith, the second by Mr Smith's wife, Joanna Smith, and the third by his son, Luke Smith. 305 The basis upon which the Court was asked to receive the statements was that the Court should not take into account the statements in determining the appropriate sentence. 306 This position, taken by the prosecution, reflects the prevailing law on the issue: see Salvatore Previtera (1997) 94 A Crim R 76; Mark Andrew Bollen (1998) 99 A Crim R 510; Inspector Glass v Foamex Polystyrene Pty Ltd [2004] NSWIRComm 100 at [43]. 307 In the latter judgment, Boland J, President held that he was constrained from taking into account the contents of a victim impact statement in respect of a death in coming to a conclusion as to what is an appropriate sentence. 308 In accordance with the prevailing law with regard to the Court's approach to victim impact statements, s 21A(2)(g) of the CSPA will not be a relevant consideration if s 21A(2)(g) were to be found to apply to the deceased's relatives. Section 21A(2)(g) is expressed in the following terms: (2) The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: ... (g) the injury, emotional harm, loss or damage caused by the offence was substantial. 309 Even if s 21A(2)(g) were capable of application by reason of the emotional harm having been suffered by Mr Smith's relatives (as to which see R v Berg [2004] NSWCCA 300 at [42] to [45] per Spigelman CJ), I would decline to take it into account on that basis because the sub-paragraph is an aggravating factor which must be proved by the prosecution beyond reasonable doubt. It requires appropriate evidentiary material upon which the Court could be satisfied to the requisite standard. The unsworn, untested statements of Mr Smith's relatives do not constitute such appropriate evidentiary material. 310 It is a necessary pre-requisite, however, before the Court may take into account the victim impact statements on the limited basis allowed, that a finding is made that the offences resulted in the death of Mr Smith. 311 The relevant statutory provisions in the CSPA are set out below: 27 Application of Division (2A) In relation to an offence being dealt with by the Industrial Relations Commission, this Division applies only if: (a) the offence is an offence against Division 1 of Part 2 of the Occupational Health and Safety Act 2000 or Division 1 of Part 2 of the Rail Safety Act 2008 , and (b) the offence results in the death of, or actual physical bodily harm to, any person. 312 A further necessary pre-requisite for the reception by the Court of victim impact statements is that the statements may only be received and considered after the Court convicts and before sentence is passed. This procedure is set out in s 28 of the CSPA which provides under s 28(1): (1) If it considers it appropriate to do so, a court may receive and consider a victim impact statement at any time after it convicts, but before it sentences, an offender. 313 It may well be unnecessary in order to comply with s 28(1) of the CSPA that the Court formally record convictions at this point: see Rail Infrastructure Corporation v Inspector Victor Page [2008] NSWIRComm 169 at [38] [39], and generally, for discussion of the issue at [20] to [37]. For the purposes of s 28(1) however I am prepared at this point to record that I convict both defendants of the offences with which they have been charged. 314 When, during the sentence proceedings, the prosecution tendered the victim impact statements the defendants indicated their consent. The basis upon which consent was given was later set out in some detail in written submissions. In summary the defendants acknowledged the family's right, and their need, to express in court the impact upon them of the death of Mr Smith, and also as a vehicle through which they may be assisted in coming to terms with the loss of a family member. At the same time the defendants made it clear that their concession did not constitute an admission that the offence resulted in (my emphasis) the death of Mr Smith. 315 In response the prosecution informed the Court in written submissions that it withdraws the tender of the victim impact statements and requests the Court to determine the factual question solely on the evidence. The prosecution added: Should it be determined that the death was resultant from the offence, the Prosecution will re-tender the victim impact statements. The question of an admission accordingly does not arise. 316 The defendants disputed the prosecution's contention that the offence resulted in the death of Mr Smith. They pointed to Mr Smith's conduct, namely his failure to wear a seat belt as well as his failure to stop and re-fuel the truck as evidence which would preclude a finding that the offence resulted in Mr Smith's death. 317 Earlier in the judgment I concluded that the evidence was not sufficient to find that Mr Smith's conduct operated to mitigate the objective seriousness of the offences. I adopt my reasons and findings on that issue in my consideration of the present issue, namely whether the offence under s 8(1) resulted in the death of Mr Smith. 318 The issue whether the offence under s 8(1) resulted in the death of Mr Smith must be determined on the facts as found. The Court has found that the truck had defective brakes and no emergency steering, both failures which are directly attributable to the defendants. I also found that the engine stopped while descending the haul road. This meant that the truck had no hydraulic pressure to operate the primary steering system on the haul road. It also meant that the retarder disengaged. This left the truck with the defective braking system which could not bring the truck to a halt and no emergency steering, causing the truck to be in a runaway condition and plunge over the embankment where it impacted nose-first on the embankment and rolled on its side. The combination of these factors must compel the conclusion that the offence under s 8(1) resulted in the death of Mr Smith, and I so find. 319 It follows from this that the Court may receive the victim impact statements under s 27(4) having been satisfied that the offence under s 8(1) resulted in the death of Mr Smith. 320 Section 28(3) of the CSPA is also relevant to the receipt of victim impact statements provided by family members of the primary victim. The sub-section provides: (3) If the primary victim has died as a direct result of the offence, a court must receive a victim impact statement given by a family victim and acknowledge its receipt, and may make any comment on it that the court considers appropriate. 321 Having found under s 27(4) that the offence under s 8(1) resulted in the death of Mr Smith, it is incumbent upon the Court under s 28(3) to receive the victim impact statements. I do not consider it necessary to re-convene the Court in order to accept the formal tender of the statements. The defendants consented to the tender of the statements on the limited basis of their acknowledgement that the family had a right and a need to express in court the impact which the death of Mr Smith has had upon them. In so consenting the defendants expressly stated that they did not agree that the offence under s 8(1) resulted in the death of Mr Smith and that their consent to the tender did not constitute an admission that the offence resulted in the death of Mr Smith. I have found otherwise but before doing so I afforded the parties the opportunity to further address this matter and any other matters on the issue of victim impact statements generally, in written submissions. The parties availed themselves of the opportunity by forwarding written submissions after the completion of the sentence hearings. I have considered these written submissions as well as other submissions made by the parties on the issue. The prosecution has not asked the Court to consider the victim impact statements in the context of determining an appropriate sentence. I therefore intend to follow the approach of Boland J in Inspector Glass v Foamex at [43] reflecting the current state of the law which permits the Court to acknowledge the statements but not take them into account as part of the material in respect of the sentences to be imposed. 322 The statements reveal the devastating impact that Mr Smith's tragic and needless death has had on the lives of his father, his wife and his two sons. The Court extends its deepest sympathies to Mr Kevin Smith for the loss of his son and to Ms Joanna Smith for the loss of her husband and Luke and Liam, Mr Smith's two sons, for the loss of their father. T. Orders 323 In Matter No 954 of 2007 I make the following orders: (i) the defendant Hunter Quarries Pty Limited is convicted of the offence (ii) the defendant is fined $214,500 with a moiety to the prosecutor 324 In Matter No 955 of 2007 I make the following orders: (i) the defendant Richard Alexanda Badior is convicted of the offence (ii) the defendant is fined $21,450 with a moiety to the prosecutor 325 Matter Nos 954 and 955 of 2007 are stood over for a directions hearing on 12 November 2009 at 9:30am in order for the parties to be heard on the issue of costs. _____________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.