Corkhill Bros Sales Pty Ltd v John Collits [1998] ACTSC 185 (6 April 1998)

  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   MILES CJ

  

  

   Occupational Health
and Safety - appeal from Magistrates Court - duty to
give notice of dangerous occurrence - penalty imposed for breach of
para.85(1)(d)
of the Occupational Health and Safety Act 1989 - whether a fine
manifestly excessive - whether information should have been dismissed under
s.556A of the Crimes Act 1900 - Australian Capital Territory legislation
stricter than New South Wales, Victorian counterparts - para.85(1)(d)
unprecedented, not
widely publicised - appellant unaware of specific
obligation - need for publicity of unprecedented laws - case as
ground-breaking
warning to employers in relation to new obligation under
sub-para.85(1)(d) - extenuating circumstances and prior antecedents require
dismissal under s.556A.

  

   Occupational Health and Safety Act 1989, para.85(1)(d)

   Crimes Act 1900 , s.556A

   Occupational Health and Safety Regulations, sub-para.2A(d)(iii)

  

  

   CANBERRA, 6 April 1998 (hearing and decision)

   #DATE 6:4:1998

  

   Counsel for the appellant: Mr. R. MacDonald

   Solicitors for the appellant: Vandenberg Reid

  

  
Counsel for the respondent: Ms. S. Cronin

   Solicitors for the respondent: ACT Director of Public Prosecutions

  

  

   THE
COURT ORDERS THAT:

  

   1. The conviction and orders of the Magistrate be set aside.

  

   2. The offence is found proved but
having regard to the antecedents of the
appellant and the extenuating circumstances, the information be dismissed.

  

   3. The
parties pay their own costs of the appeal and in the proceedings
below.

  

  

   MILES CJ

  

   This is an appeal against a
penalty imposed by way of a fine of $2,500 for
breach of para.85(1)(d) of the Occupational Health and Safety Act 1989 (the
Act).

  

   That sub-section imposes a duty on an employer who is aware of certain
events at or near the workplace attributable to the
employer's undertaking at
the workplace to give notice of the event to the Registrar in accordance with
the Occupational Health and
Safety Regulations (the Regulations). The
Regulations provide that notice is to be given within seven days on a
prescribed form.
Among the events to be notified is that of a dangerous
occurrence.

  

   Dangerous occurrence as defined via sub-para.2A(d)(iii)
of the Regulations
includes an occurrence involving imminent risk of substantial damage to
property.

  

   In the present case,
on 5 December 1995 an employee of the appellant parked
a front-end loader, with handbrake engaged, at the top of a slope above a
house at Ngunnawal. Whilst unattended the front-end loader ran down the slope
causing substantial damage to the house. Apparently
the house was repaired at
a cost of $24,000 to the appellant and the repairs completed by Christmas. No
one was injured, but the
nature of the damage appears to have been such that
there was a risk of collapse or further collapse of parts of the house. It
must
be taken, therefore, that the imminent risk of substantial damage
referred to in para.2A(d)(iii) of the Regulations existed from
the time of the
incident until the completion of structural repairs. The Magistrate indicated
in an exchange with counsel that he
was aware of this.

  

   The matter was notified to Workcover by an insurance agent on 14 December
1995. Workcover officers investigated
and advised the appellant of its
obligation to notify under s.85 of the Act. A report in the prescribed form
was prepared on the
appellant's behalf on 20 December 1995 and lodged with the
Registrar on 22 December 1995. By that time it is likely that the structural
repairs had been carried out and that any imminent danger of substantial
damage to the house, or for that matter to any person, had
passed.

  

   An information alleging an offence under para.85(1)(d) of the Act was laid.
The appellant through its counsel pleaded
guilty. The Magistrate rejected a
submission that he proceed under s.556A of the Crimes Act 1900 without
proceeding to a conviction. A conviction was recorded and the fine imposed.

  

   Mr. MacDonald, for the appellant, submitted
on the appeal that the fine was
manifestly excessive and that a proper exercise of judicial discretion
required the dismissal of
the information under s.556A of the Crimes Act 1900
. He referred to the fact that the company was of long-standing and good
repute with an unblemished record with regard to its obligations
under the
Act. It put an end to the danger with commendable speed.

  

   The appellant was unaware of its obligations to notify
dangerous
occurrences although I accept that it was aware in a general way of its
obligations to notify injuries to persons.

  

   However, the purpose of the particular provision of the legislation must be
borne in mind. That purpose is clear. It is necessary
in the interests of
industrial safety that, where an incident occurs which gives rise to imminent
danger such as that of substantial
damage to property, which will usually give
rise to danger of injury to persons, the danger be reported promptly to the
industrial
safety authority so that investigations may be made not only for
determining the cause of what occurred but also for preventing any
damage that
has been made imminent. On the face of it, failure to report within seven days
can be a serious offence because it may
be that after then it is too late to
report. The danger may by then be over, either because the damage has passed
or, worse, because
the damage has eventuated. Furthermore, the delay may
prevent the cause of the danger being properly investigated.

  

   So, despite
the matters to which Mr. MacDonald has referred, I do not think
that, on the face of it, the imposition of a fine was manifestly
excessive. On
the other hand, there is this aspect. Paragraph 85(1)(d) of the Act was
unprecedented at the time the legislation was
passed and was unlikely to be
effective unless it was accompanied by wide publicity in the community. As I
understand it, the requirement
to notify dangerous occurrences is stricter in
the Australian Capital Territory legislation than it is in its New South Wales
and
Victorian counterparts. Ms. Cronin, for the respondent informant, was
unable to point to any steps taken by Workcover or any other
agency to make
employers and others affected by the legislation aware of their new and heavy
responsibilities. That lack of publicity
presumably continues. The appellant
appears not only as a first offender but the first offender in the Australian
Capital Territory,
and possibly in Australia, in relation to failure to notify
a dangerous occurrence. The case will act as a reminder to the appellant
of
its duties as an employer to minimise danger in and near the work place. For
other employers who learn about it, the case is likely
to provide not so much
a reminder as a ground-breaking warning. For these considerations I think that
the circumstances were extenuating
and that the provisions of s.556A of the
Crimes Act 1900 should have been extended to the appellant. Unfortunately the
Magistrate's attention was drawn only to the prior antecedents of the
appellant and not the extenuating circumstances.

  

   The conviction and orders by the Magistrate are set aside and in their
place
it is ordered that the offence found is found proved but having regard
to the antecedents of the appellant and the extenuating circumstances
under
which the offence was committed, it is inexpedient to inflict any punishment
and the information is dismissed. The parties
are to pay their own costs of
appeal and in proceedings below.