Prosecution Details

Being a self-employed person failed, so far as was practicable, to ensure that the safety of a person not being his employee was not adversely affected as a result of the work in which he was engaged in contravention of section 21(1) of the Occupational Safety and Health Act 1984 and by that contravention caused the death of a person.

A retired farmer was fatally crushed between a cattle truck and a loading ramp on his farm at Metricup on 12 June 1998.

The defendant was a self-employed transport contractor who was delivering cattle to the farm. As the cattle were being unloaded, a steer became trapped between the truck and the loading ramp.

The defendant asked the farmer to close the sliding gate at the rear of the crate on the truck while the defendant drove forward in order to release the trapped steer. The defendant then drove the truck forward and the steer dropped to the ground. The farmer stepped behind the truck to close the sliding gate, and the defendant immediately reversed the truck, crushing the farmer against the loading ramp.

The learned Magistrate considered whether it was reasonably practicable for the defendant to have taken precautions to avoid exposing the farmer to hazards. The learned Magistrate accepted that the farmer may well have been experienced and the defendant might have had an honest belief that the farmer was experienced. However, the learned Magistrate held that the concept of "practicability" was always an objective one, and had to be answered on that basis.

The learned Magistrate found that he was satisfied beyond reasonable doubt that the defendant had a duty to take precautions and that it was unreasonable in the circumstances for the defendant to have reversed the truck. The defendant should have stopped and checked before reversing. The learned Magistrate was satisfied that the charge had been proven beyond reasonable doubt and duly convicted the defendant.

In imposing sentence, the learned Magistrate indicated that his task was a difficult one. The defendant's act did not constitute negligence at its worst. There had been no wanton or reckless disregard, but rather a failure to exercise reasonable diligence and care and therefore the offence was at the lower end of spectrum of culpability. The learned Magistrate accepted that the defendant was held in high regard by members of the farming community, as evidenced by the number and quality of character references tendered on the defendant's behalf. After referring to the defendant's financial circumstances, the learned Magistrate considered that a fine of $5,000 was appropriate in all of the circumstances.

The defendant pleaded not guilty. The penalty imposed was under section 21(3) of the Occupational Safety and Health Act 1995.

See Significant Incident Summary 13/1998 for further information.

convicted