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:

1. On 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.

1. The 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).

1. TAFE 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.

1. Dargo 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.

1. Although 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.

1. It 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.

1. On 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".

1. However, 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.

1. Despite 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.

Culpability

1. The riding course was established, and a tender process for provision of horses conducted, under the supervision of a person known as the Director of Education Delivery. That person has not been identified. TAFE admits that he or she did not carry out any assessment of the risks associated with the course.

1. It is necessary in the imposition of the appropriate penalty to assign culpability to the defendant. That circumstance is exquisitely put by Mr Waugh, the father of Ms Waugh, in his impact statement where he said that Despite all of this, (speaking of that which has gone before this sentencing hearing) no person is yet to take responsibility for the myriad mistakes that were made.

1. In Tesco v Nattrass [1972] A.C. 153 Lord Reid said this:

I must start by considering the nature of the personality which by a fiction the law attributes to a corporation. A living person has a mind which can have knowledge or intention or be negligent and he has hands to carry out his intentions. A corporation has none of these. It must act through living persons though not always one or the same person. Then the person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company.

1. An inquiry into culpability is an inquiry into a reprehensible state of mind, a mind lacking care for the consequences, or failing to observe the standards of a reasonable man when acting or failing to act.

1. The gravity of a corporation's culpable failure to act reasonably is to be found by weighing the culpability of natural persons whose obligation it was as a servant or agent to know and discharge the legal responsibilities of the corporation in respect of the duty in question (see Meridian Global Funds Management Pty Limited v Securities Commission [1995] 3 All ER 918).

1. In each case a natural person must be identified or postulated whose personal conduct is to be weighed against the reasonable person with his or her knowledge, possessing his or her powers of control.

1. It is accepted by the prosecution that Mr Bastian and Ms Falkiner were at fault in failing to make appropriate inquiries. Ms Falkiner is also at fault for failing to ensure that the gate through which Dargo bolted was closed. Although Mr Shume for the defendant submits that their fault is modest, because they were not provided with appropriate guidance, he does not identify the persons who should have provided the guidance. Mr Bastian and Ms Falkiner had the primary and immediate duty to Ms Waugh to ensure that the lesson was carried out safely.

1. The fault of the Director of Education Delivery is manifest. Horse-riding is, as is well known even to persons who have never been on a horse, a dangerous activity. Literature abounds with references to death by fall from a horseback. The Director egregiously failed to conduct any risk assessment in the delivery of the course, and failed to institute a tender process that identified and weeded out unsuitable horses. Those failures are more significant, given the well-recognised special and non-delegable duties of educational institutions to students (Commonwealth v Introvigne [1982] HCA 40; (1982) 150 CLR 258).

1. It is not helpful for the prosecutor in prosecuting corporate entities to refer continually to the defendant, or the corporation, in the abstract. In future I would be more assisted if the prosecutor would go to the trouble of identifying the natural persons who, for the purposes of discharging the relevant duty, constitute the defendant.

1. It is, I think, terribly unfair that Mr and Mrs Waugh, even at this stage cannot identify, whether to forgive or not, a culpable natural person who will take responsibility.

1. The purposes of sentencing are expressed in section 3A of the Crimes (Sentencing Procedure) Act 1999:

3A Purposes of sentencing

The purposes for which a court may impose a sentence on an offender are as follows:

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.

Specific Deterrence

1. The defendant leads evidence of comprehensive measures taken to ensure that such an event will not happen again in relation to instruction in horse-riding. Although the defendant also teaches other activities which involve high risk, I am satisfied that the defendant has addressed generically the risks associated with all courses. The penalty need not reflect a pressing need to specifically deter the defendant from similar conduct.

General Deterrence

1. I believe it necessary to deter other persons from committing similar offences. It is not only TAFE that offers horse-riding courses. Horse-riding is prevalent within leisure activities, and it is important that those persons who provide horse-riding lessons or hire out horses for use by beginners are aware that severe punishment may be visited upon persons who unreasonably fail to take care.

Remorse, Contrition and Recognition of Harm

1. Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 provides that remorse may be a mitigating factor to be taken into account in sentencing, but only if:

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)

1. The defendant relies upon affidavits by Ms Pamela Christie, who was appointed as the Deputy Director-General of TAFE in March 2010 and Managing Director on 24 October 2012, and Ms Catherine Baxter, who was appointed as institute director, TAFE NSW, Western Institute in May 2010.

1. Ms Christie says:

On behalf of TAFE NSW I would like to reiterate how sorry I am that TAFE did not do more to prevent this dreadful tragedy. I would also like to acknowledge the terrible impact Sarah's death has had on her family.

1. Ms Baxter says:

Western Institute will continue to strive to ensure that processes and systems are in place to prevent another family experiencing what Mr and Mrs Waugh and their family have lived through since March 2009.

1. In Cahill v State of NSW (Department of Community Services) (No 4) [2008] NSWIRComm 201 at [62] Boland P said:

A simple expression of contrition or remorse by a representative of a corporate offender, no matter how senior the representative, is not enough to enable the Court to find that the offender is remorseful: As Cummins J said in DPP v Esso Australia Pty Ltd [2001] VSC 263; (2001) 124 A Crim R 200, "personal expressions of remorse need to be translated into reality". See also see Regina v Heip Tan Nguyen [2004] NSWCCA 438 per Bell J (Hidden and James JJ agreeing) at [21]. There must be evidence that the offender has accepted responsibility for its actions and also that the offender has acknowledged any injury, loss or damage caused by its actions or that it has made reparation for such injury, loss or damage (or both).

1. The regret expressed by Ms Christie and Ms Baxter for the actions of others does not constitute remorse. No evidence is led from the persons who previously occupied the positions of Director-General of TAFE and Director of TAFE NSW Western Institute. It was those persons who had the power to control the events leading to the death of Miss Waugh.

1. No evidence is led from either Mr Bastian or Ms Falkiner, or the unidentified Director of Education Delivery responsible for the failure to conduct any risk assessment.

1. It seems to me that in this particular case the culpable persons should have been identified, held to account and called upon to demonstrate personal remorse for his or her failings. It is necessary to show that a natural person has recognised and accepted responsibility for his or her failing. It is this that troubles Mr and Mrs Waugh.

1. Section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 provides that the fact that the injury, emotional harm, loss and damage caused by the offence was substantial may be taken into account in sentencing as an aggravating factor.

1. There can be no doubt that the consequences of this offence, the preventable death of a young person, constitute a most extreme aggravating factor.

1. Mr James Waugh, the father of Sarah Waugh, read a victim statement to the court. He is distressed that: Despite a series of investigations, legal proceedings and related actions over more than five years since Sarah's death. . .no person is yet to take responsibility for the myriad mistakes that were made.

1. Mrs Juliana Waugh, Sarah's mother, also read a victim statement. Her anguish is searing in its intensity. She wrote I am broken, I am destroyed...I have no peace. As Mrs Waugh's statement makes clear, her grief is compounded by the failure of any responsible officer of TAFE to accept blame for the death of her daughter.

1. I cannot increase the penalty in recognition of Mr Waugh's distress and Mrs Waugh's grief, however, I can and do take into account the fact, to which they advert, that no responsible officer of TAFE has yet accepted blame or expressed personal contrition.

Conclusions

1. I note that the defendant does have a record of several convictions but as against that, it is an extremely large institution employing some 14,000 workers. In the circumstances, the record is not significant.

1. The culpability of the Director of Education Delivery, and the culpability of Mr Bastian and Ms Falkiner are to be weighed on a scale in which I recognise human failings and a failure of adversion. On the scale of culpability that does not come anywhere near the culpability which involves courting the risk of an identified danger. Although the culpability is relatively high, it is not the highest end of the spectrum, nor at the lowest.

1. It seems to me that the most significant matters to which I should turn my mind are the magnitude of the harm occasioned by the tragic death of Ms Waugh (section 3A(g)), the need to denounce the conduct of the offender (section3A(f)), and the failure of the defendant to provide any evidence of contrition and remorse from those whose failures led to the death (Section 21A(3)(i)).

1. These are circumstances which sound heavily, even where the culpability may be less than the gravest, and the need for individual deterrence relatively immaterial.

1. The maximum penalty is $825,000. I find an appropriate penalty to be $400,000. In recognition of the early plea of guilty and the assistance given to the authorities that sum is to be discounted by 25 per cent. I impose a fine of $300,000. I order that the prosecutor receive a moiety of that fine and I order that the defendant pay the prosecution's costs as agreed or assessed.

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Decision last updated: 23 July 2014