WorkCover (Inspector Calvez) v TAFE Commission [2014] NSWDC 108

District Court New South Wales

Medium Neutral Citation: WorkCover (Inspector Calvez) v TAFE Commission [2014] NSWDC 108 Hearing dates: 14/07/2014 Decision date: 14 July 2014 Jurisdiction: Criminal Before: Curtis J Decision: Defendant is convicted Defendant is fined $300,000 with a moiety to the prosecutor The defendant is to pay the prosecutor's costs as agreed or assessed Legislation Cited: Occupational Health and Safety Act 2000 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Tesco v Nattrass [1972] AC 153 Meridian Global Funds managment Pty Ltd v Securities Commission [1995] 3 All ER 918 Commonwealth v Intovigne [1982] HCA 40; 150 CLR 258 Cahill v State of NSW (Department of Community Services) (No 4) [2008] NSWIRComm 201 Category: Sentence Parties: WorkCover Authority of New South Wales (Inspector Amanda Clavez) (Prosecutor) Technical & Further Education Commission (also known as TAFE Commission) (Defendant) Representation: M P Cahill appeared for the Prosecutor M L Shume appeared for the Defendant WorkCover Authority of New South Wales (Prosecutor) Department of Education & Legal Services (Defendant) File Number(s): 2012/333950

REMARKS ON SENTENCE HIS HONOUR: 1On 24 March 2009 Sarah Waugh, then aged 18 and a relatively inexperienced rider, was fatally injured when, in the course of a riding lesson, she fell from a horse named Dargo as the horse broke into an uncontrolled gallop approaching an open gate leading to its stable. 2The riding lesson was part of a course conducted by the Dubbo Rural Skills and Environment Centre where Ms Waugh was enrolled as an agricultural student. The centre was owned and operated by the Technical and Further Education Commission (TAFE). 3TAFE has pleaded guilty to the charge that, contrary to its duties under section 8(2) of the Occupational Health and Safety Act 2000, it failed to ensure that Ms Waugh was not exposed to risk. 4Dargo was supplied to the Dubbo Centre by Mr Glenn Manton, an experienced horseman and horse trainer, who had contracted to supply to the Dubbo Centre, horses which were "quiet and suitable for beginner riders". The horse was purchased by Mr Manton on 16 February 2009 from Mr John McKinnon, a local racehorse trainer, and delivered to the Centre on 23 February 2009. 5Although Dargo was described as "pretty quiet" by his track rider and "quiet, well behaved and did not show any signs of being nervous, flighty or temperamental" by another experienced observer, he was unsuitable for use by a relatively inexperienced rider such as Ms Waugh because he was a thoroughbred racehorse who had last raced on 7 February 2009, approximately six weeks before the incident. 6It is well known that as a consequence of race training thoroughbred horses are unlikely to be suitable for beginner novice riders in the absence of retraining and reconditioning. Such training is directed to making the horse more unresponsive to unintentional and inappropriate cues from inexperienced riders. 7On 23 February Dargo was assessed by Mr Geoffrey Bastian, the head teacher of the course, and Ms Sara Falkiner, the teacher assigned to teach the riding lesson. Both are highly experienced riders. Based on their observations of the physical condition and temperament displayed by Dargo they each formed an initial view the horse fitted the description "quiet and suitable for beginner riders". 8However, both Mr Bastian and Ms Falkiner knew that a trained thoroughbred whose last race was as recently as 9 February 2009 would be unsuitable for use by an inexperienced rider such as Ms Waugh. Had they known Dargo's riding history they would not have accepted the horse as suitable for riding tuition. 9Despite this circumstance, and at least Ms Falkiner's knowing that Dargo was a former racehorse, neither sought from Mr Manton any information as to the racing history and or retraining of Dargo. In any event, had Mr Manton not supplied the information that information could have been obtained by reference to the microchip contained in the horse's ear.