Erindale M Pty Ltd v Curran [2004] ACTSC 69 (20 August 2004)

Last Updated: 16 September 2004

ERINDALE M PTY LTD v MARK CURRAN

[2004] ACTSC 69 (20 August 2004)

OCCUPATIONAL HEALTH AND SAFETY - appeal - penalty - whether manifestly excessive - usual principles of sentencing apply - deterrent effect of penalty.

Occupational Health and Safety Act 1989, s 28

Legislation Act 2001, s 133

Petreski v Cargill (1987) 18 FCR 68

House v The King [1936] HCA 40; (1936) 55 CLR 499

WorkCover (NSW) (Insp Walton) v Hume Doors & Timber (Aust) Pty Ltd (1998) OH&S Law, ¶ 53-361

Oliver (1981-1983) 7 A Crim R 174

Boral Building Services Pty Limited v Gazley [1997] ACTSC 68

WorkCover Authority of New South Wales (Inspector Robins) v Ecolab Pty Ltd [1999] NSWIRComm 300

R v De Simoni [1981] HCA 31; (1981) 147 CLR 383

Rodney Douglas McCracken v Mark Raymond Johnsen [2003] ACTSC 74

Inspector Glass v Foamex Polystyrene Pty Ltd [2004] NSWIRComm 100

ON APPEAL FROM THE MAGISTRATES COURT

No SCA No 24 of 2004

Judge: Connolly J

Supreme Court of the ACT

Date: 20 August 2004

IN THE SUPREME COURT OF THE )

) No SCA No 24 of 2004

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: ERINDALE M PTY LTD

Appellant

AND: MARK CURRAN

Respondent

ORDER

Judge: Connolly J

Date: 20 August 2004

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. This is an appeal from a decision of Magistrate Lalor who on 14 April 2004, upon a plea of guilty entered on 26 March 2004, convicted the appellant corporation of an offence contrary to s 28 of the Occupational Health and Safety Act 1989, and imposed a fine of $40,000. The appeal is brought solely on the ground that the sentence is manifestly excessive. The offence for which the corporation was convicted provides -

28 Duty of employers in relation to third parties

(1) An employer shall take all reasonably practicable steps to ensure that persons at or near a workplace under the employer's control, who are not the employer's employees, are not exposed to risk to their health or safety arising from the conduct of the employer's undertaking.

2. The maximum penalty provided for a breach of the section is 250 penalty units. By s 133 of the Legislation Act 2001 if the person charged is an individual, the monetary value of a penalty unit is $100, but if the person charged is a corporation, the monetary value of a penalty unit is $500. The maximum penalty for this offence is accordingly $125,000.

3. The appellant corporation owns and operates four fast food restaurants in Canberra and Queanbeyan, which operate as part of the McDonalds chain. The learned Magistrate found, and it is not disputed in this appeal, that on the evening of 15 November 2002 Mrs Pauline Bonney took her two sons, Callum aged two years and nine months and Harry aged 16 months to the McDonalds Family Restaurant at Erindale for a meal with the children's grandmother, Mrs Crawford. In his reasons, the Magistrate said (at AB 5) that Mrs Crawford -

noticed there were several metal poles sticking up from the floor approximately 60 centimetres high, they had no covering on them and it was obvious there should have been swivel seats on them. They made a decision not to sit near the poles as they thought they could easily hurt a child. "We chose a table that had four seats and I thought it had no poles protruding" she said.

4. The table that they chose in fact had freestanding chairs, some of which had been placed over exposed poles. The child Callum was kneeling on a freestanding chair which toppled, and he fell off, hitting his nose and mouth on the metal pole under the chair.

5. Photographs of the metal poles were tendered before the Magistrate, and appear in the Appeal Book (AB 37-44). The Magistrate accepted that from at least June 2002 persons had been stealing the seat structure from some of the chairs in the restaurant, leaving behind the exposed fixed metal seat poles. The photographs show that the appellant placed paper cups over some of the protruding metal poles, and placed chairs over the stems. The learned Magistrate accepted the evidence of an inspector from ACT WorkCover that this was not an appropriate method of making safe an obvious hazard. The Magistrate concluded (at AB 7) that -

the risk to the health or safety of young persons and families invited onto these premises was significant.

6. Although an appeal from the Magistrates Court to this Court is in the nature of a rehearing, it has long been held that this Court will not interfere with a sentence of a Magistrate unless an error of principle is demonstrated in the way the Magistrate exercised his or her discretion. The Full Court of the Federal Court in Petreski v Cargill (1987) 18 FCR 68, per Sheppard, Kelly and Neaves JJ, said at 75 that a judge sitting on a sentencing appeal from a magistrate -

... should not interfere with the magistrate's decision unless he found an error of principle or fact of the kind contemplated in House v The King [1936] HCA 40; (1936) 55 CLR 499 or came to the conclusion that the sentences were manifestly excessive.

The reference to House is to the well-known passage in the judgment of Dixon, Evatt and McTiernan JJ where their Honours set down the principle an appellate court should adopt in reviewing the exercise of a sentencing discretion as follows (at 504) -

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion.

7. In his sentencing remarks the learned Magistrate, in rejecting a submission that he should proceed by way of recording no conviction and discharging the appellant, stated (at AB 7) that -

the penalties under the occupational health and safety legislation are high, and there's a community expectation that breaches of the Act will be severely dealt with. There is a need for penalties as deterrents to show to others that breaches will not be lightly dealt with.

8. If the learned Magistrate was to be taken to say that community expectations of severe penalties were to be a determining factor in the exercise of the sentencing discretion, that could well amount to appellable error but, it seems to me, that his Worship in these remarks was merely addressing the appropriate criteria of general deterrence and the need for the courts, on behalf of the community, to adequately address the seriousness of breaches of occupational health and safety laws. In doing so he paraphrased remarks of the New South Wales Chief Industrial Magistrate in WorkCover (NSW) (Insp Walton) v Hume Doors & Timber (Aust) Pty Ltd (1998) OH&S Law, ¶ 53-361. Moreover, the remarks really do little more than incorporate the well-established principle that a starting point for a consideration of the objective seriousness of an offence is the maximum penalty prescribed by the legislature (Oliver (1981-1983) 7 A Crim R 174).

9. In rejecting a submission that it would be appropriate to dismiss the matter without recording a conviction, his Worship's remarks are also consistent with the remarks of Higgins J (as he then was) in Boral Building Services Pty Limited v Gazley [1997] ACTSC 68 where his Honour said that -

... in cases [under occupational health and safety legislation] the primary objective of the legislature is to support deterrence. Thus provisions such as s 556A or low scale penalties will usually be inappropriate. The deterrence is largely implemented by means of substantial monetary penalties. A premium is placed on encouraging foresight, reflection and avoidance of risk rather than mere retribution for unforeseen but foreseeable consequence.

... Prevention of work injury and encouraging higher standards of vigilance are legislative objectives.

10. I am satisfied that the reasons of the learned Magistrate display no error of principle in the way he approached his responsibility to sentencing this corporate offender for a breach of the occupational health and safety legislation that he regarded, rightly in my view, as serious. The appellant can thus only succeed on this appeal if it can demonstrate that the monetary penalty, which at $40,000 was 32% of the statutory maximum, was manifestly excessive.

11. The learned Magistrate properly concluded that general deterrence was a relevant factor in sentencing for breach of occupational safety laws. He referred, with approval, to remarks of Wright J, President of the NSW Industrial Relations Commission, in WorkCover Authority of New South Wales (Inspector Robins) v Ecolab Pty Ltd [1999] NSWIRComm 300 where his Honour said -

The gravity of the damage or injury actually resulting from breach does not, of itself, dictate the amount of the penalty. However, the gravity or otherwise of the potential risk flowing from breach and its foreseeability are clearly relevant as are the measure of gravity of the breach itself and the measure of the culpability.

12. While it was argued by the appellant that the child, fortunately, suffered relatively modest injuries, it seems to me that the learned Magistrate was entitled to look beyond the actual injuries and to conclude as he did (AB 7) that -

the risk to the health and safety of young persons and families invited onto these premises was significant.

13. It is no answer to a prosecution for a breach that the actual injury was slight, or that there was no injury. Ideally, any serious breach of occupational health and safety legislation will be detected before a worker or member of the public is injured. It is no answer to say in response to a prosecution for, say, failing to place a safety barrier around a hazard, that no one had yet been injured, or that the injury was only slight. In this case, it is no answer to say that the injuries were minor, for a fall in a slightly different manner could well have resulted in the loss of an eye.

14. The evidence in this case was that the seats had started to be removed from the restaurant from June 2002. It is true, and it is to the appellant's credit, that detailed safety logs are maintained of the state of the premises, but these do reveal that, although missing seats were documented from June, the full rectification had not occurred until after this accident, and indeed it was the evidence of the WorkCover inspector that the area of the restaurant that contained the metal poles was only cordoned off from public access as a consequence of the inspector's visit after this accident. The Magistrate noted that there had been some difficulty in obtaining replacement chairs, saying that (AB 6) -

There was difficulty I accept in replacing the chairs, although there would appear to have been some in storage that fitted their need. And little had been done to rectify the complaints as set out in the hazard reports completed on a fortnightly basis by the employees and the managers of the McDonalds franchise.

15. It seems to me that his Worship was entitled to take this matter seriously. If the evidence had been that the seat on which the young boy suffered his injury had been the first exposed seat pole, and had only been detected days before the incident, greater leniency could have been expected. But the evidence before him was that these dangers, which he quite properly regarded as being potentially serious in an environment where young families were the principal patrons of the restaurant, had been left exposed since June.

16. I should add that it seems to me that in sentencing for a breach of occupational health and safety laws the Magistrate did not err in having regard to potential danger to others, although of course in general a person is to be sentenced on the basis of what did occur, not what might have occurred (R v De Simoni [1981] HCA 31; (1981) 147 CLR 383). In Rodney Douglas McCracken v Mark Raymond Johnsen [2003] ACTSC 74, Higgins CJ, in dismissing an appeal against sentence for a breach of s 28 of the Occupational Health and Safety Act arising from the implosion at Canberra Hospital, said at [54] -

A substantial fine was called for and her Worship imposed a substantial fine. The objective circumstances tragically illustrated the terrible risks involved in the exercise. I do not consider that her Worship was in error in noting the tragic consequences that followed. It is no breach of the De Simoni principle to assess the need for adequate precautions by reference to the consequences, both actual and potential, of the failure to take them.

17. In Inspector Glass v Foamex Polystyrene Pty Ltd [2004] NSWIRComm 100, Boland J said at [18] that -

The consequences of a breach of the Act, however, are not the measure by which the amount of penalty is to be determined because it is the gravity of the detriment to safety that must be the Court's focus. The consequences, however, may be a measure of the seriousness of the risk...

An offence ...will be regarded as more serious than it otherwise might have been if the risk to safety was obvious or reasonably foreseeable and reasonably practicable steps were available to avoid the risks, but these steps were not taken.

18. It seems to me that the length of time the obvious hazard had been present together with the relative ease by which the hazard could be removed by either permanently replacing the seat or blocking access to that part of the restaurant where the hazard was present, were factors that his Worship was properly able to have regard to in determining a penalty that was in the order of one-third of the statutory maximum.

19. In this case his Worship had regard to the early plea of guilty, and the appellant corporation's otherwise unblemished record in respect of workplace safety. As I have observed, if this prosecution related to a single incident, these factors may have carried substantial weight. But his Worship found, correctly in my view, that the significant hazard of a protruding metal pole in a family restaurant had been allowed to continue for some months, when it was easily rectified. A good record must be taken into account, but as Higgins J noted in Boral Building Services v Gazely -

It was and is relevant to give due weight to the fact that the appellant has a previously creditable and, so far as is known, unblemished safety record. That can, of course, be more attributable to good fortune than good management if an unsafe practice has previously been adopted.

20. In this case, the Magistrate was entitled to take the view that the unsafe practice that eventually resulted in the injury to Callum had been allowed to remain in place for a considerable time, and that it was merely good fortune that there had not been other or more serious injuries.

21. It seems to me that the penalty imposed, while substantial, did not exceed the bounds of sentencing discretion available to the learned Magistrate and, although it may be higher than this Court may have imposed at first instance, that does not establish that it is manifestly excessive.

22. The appeal should be dismissed.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 20 August 2004

Counsel for the appellant: Mr R Crowe SC

Solicitor for the appellant: Hunt & Hunt

Counsel for the respondent: Mr R Refshauge SC

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 9 August 2004

Date of judgment: 20 August 2004