Citation: WorkCover (Inspector Calvez) v TAFE Commission [2014] NSWDC 108
Court: District Court of New South Wales
Date: 14 July 2014
Judge(s): Curtis J
Background
In March 2009, an 18-year-old agricultural student died after falling from a thoroughbred horse during a riding lesson at the Dubbo Rural Skills and Environment Centre, a facility owned and operated by the Technical and Further Education Commission (TAFE). The horse, supplied under contract by an external provider who had agreed to supply horses "quiet and suitable for beginner riders," had last raced approximately six weeks before the incident. It had not been retrained or reconditioned for use by novice riders.
The teaching staff who assessed the horse on its arrival recognised it as a former racehorse but failed to seek any information about its racing history or retraining. An open gate leading to the horse's stable was left unlatched. As the horse broke into an uncontrolled gallop toward that gate during the lesson, the student fell and suffered fatal injuries.
TAFE pleaded guilty to a charge under section 8(2) of the Occupational Health and Safety Act 2000, which imposed a duty on employers to ensure persons other than employees were not exposed to risk arising from the conduct of the undertaking. The proceedings before Curtis J concerned the appropriate sentence.
Legal Issues
- How culpability should be assessed for a corporate defendant under occupational health and safety legislation, and which natural persons' conduct should be attributed to the corporation
- What weight to give specific and general deterrence in sentencing TAFE
- Whether TAFE had demonstrated sufficient remorse and contrition to attract a mitigating discount under section 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999
- What fine, within the $825,000 statutory maximum, was appropriate in all the circumstances
Decision
Culpability of the corporation: Curtis J applied the principle that a corporation's culpability is assessed by reference to the natural persons whose conduct, in discharging the relevant legal duty, constitutes the corporation's conduct. Three individuals were identified as bearing responsibility. The unidentified Director of Education Delivery failed entirely to conduct any risk assessment and failed to design a tender process that would screen out unsuitable horses. The head teacher and the assigned riding instructor failed to obtain basic information about the horse's racing and retraining history, despite knowing that a recently raced thoroughbred would be unsuitable for a novice rider. The instructor also failed to ensure the stable gate was closed. His Honour noted that the Director's failures were the most serious, particularly given the well-recognised non-delegable duty owed by educational institutions to students.
Specific and general deterrence: Curtis J accepted that TAFE had implemented comprehensive remedial measures following the incident and was satisfied that specific deterrence was not a pressing consideration. General deterrence, however, was given significant weight. Horse-riding is offered not only by TAFE but by many other providers, and the judgment emphasised the importance of severe penalties as a signal to all operators of riding courses and hire services.
Remorse and contrition: TAFE tendered affidavit evidence from senior officers expressing institutional regret. Curtis J accepted those expressions as genuine, but noted that no responsible officer of TAFE had personally accepted blame or expressed individual contrition. The victim's parents' impact statements described their grief as compounded by the absence of any named person taking responsibility. His Honour could not treat this as an aggravating factor warranting an increase in penalty, but it weighed against full mitigation for remorse under section 21A(3)(i).
Penalty: His Honour identified the harm occasioned by the student's death, the need to denounce the conduct, and the absence of personal contrition from those responsible as the most significant sentencing considerations. A base penalty of $400,000 was set, against a statutory maximum of $825,000, reflecting culpability that was above the middle of the range but not at the highest end. A 25 per cent discount was applied for the early guilty plea and cooperation with authorities, producing a fine of $300,000.
Orders Made
- TAFE Commission is convicted of the offence
- TAFE Commission is fined $300,000
- A moiety (half) of the fine is to be paid to the prosecutor (WorkCover Inspector)
- TAFE Commission is to pay the prosecutor's costs as agreed or assessed
Key Takeaways
- Corporate culpability under occupational health and safety legislation requires the court to identify the natural persons whose conduct constituted the corporation's discharge of its duty, rather than simply treating the corporation as an abstraction. Curtis J called on prosecutors in future cases to do this identification work explicitly.
- A recently raced thoroughbred horse, without retraining or reconditioning, is not suitable for novice riders, and operators of riding courses have an obligation to inquire into a horse's history rather than relying solely on its apparent temperament at assessment.
- Under section 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999, institutional expressions of regret alone may not satisfy the remorse mitigating factor where no individual responsible officer has personally accepted blame or expressed contrition.
- Educational institutions owe a non-delegable duty of care to students, and the failure of those responsible for course delivery to conduct any risk assessment was treated as a serious aggravating feature of culpability.
- General deterrence carried substantial weight in sentencing because horse-riding is a widespread activity offered by many providers beyond TAFE, and the judgment signals that severe penalties may follow unreasonable failures to manage risk in that context.
Legislation and Cases Referenced
Legislation
- Occupational Health and Safety Act 2000
- Crimes (Sentencing Procedure) Act 1999
Cases
- 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