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Supreme Court of the ACT |
Last Updated: 26 October 2009
TERRITORY COMMERCIAL ROOFING PTY LTD v STEVEN
HART
[2009] ACTSC 119 (17 September 2009)
CRIMINAL LAW – appeal against conviction for offences under s 27 and s 29 of Occupational Health and Safety Act 1989 (ACT) – where employee of first appellant, under supervision of second appellant, was electrocuted on work site – where appellants required to take “all reasonably practicable steps” to ensure workplace was safe and without risk to employees – whether it was open on evidence for Magistrate to conclude that appellants had not taken “all reasonably practicable steps” – whether Magistrate had erred by placing onus on appellants to establish that they had taken “all reasonably practicable steps” including ensuring electricity was cut off
Held: appeal dismissed – Magistrate’s finding that appellants were unaware of risk of electrocution supported conclusion that appellants had not ensured that electricity was cut off – open on the evidence before Magistrate for her to conclude that appellants had not ensured electricity cut off.
Occupational Health and Safety Act 1989 (ACT) s 27, s
29
Occupational Health and Safety Act 1985 (Vic) s 21
Occupational Health and Safety Act 2000 (NSW) ss 8, 10, 28
Chugg v Pacific Dunlop Limited [1990] HCA 41; (1990) 170 CLR
249
Petreski v Cargill (1987) 18 FCR 68
Proudman v Dayman
[1941] HCA 28; (1941) 67 CLR 536
No SCA 54 of 2008
Judge: Besanko J
Supreme Court of the ACT
Date: 17 September 2009
IN THE SUPREME COURT OF THE )
) No. SCA 54 of
2008
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: TERRITORY COMMERCIAL ROOFING PTY LTD
First Appellant
PATRICK NEVILLE SKEERS
Second Appellant
AND: STEVEN HART
Respondent
ORDER
Judge: Besanko J
Date: 17 September 2009
Place: Adelaide via videolink
with Canberra
THE COURT ORDERS THAT:
1. The appeal be dismissed.
1. These are appeals by a company and an individual against convictions
recorded against them by the ACT Magistrates Court at Canberra
on 5 June 2008.
The appellants are Territory Commercial Roofing Pty Ltd (“TCR”),
which was convicted of an offence under
s 27 of the Occupational Health and
Safety Act 1989 (ACT) (“Occupational Health and Safety Act”), and Mr
Patrick Neville Skeers, who was convicted of an offence under s 29 of the
Occupational Health and Safety Act.
2. The relevant events occurred at a
building site at 21 Whyalla Street, Fyshwick, in the Australian Capital
Territory (“the
site”), on 5 March 2003, and resulted in the
death, by electrocution, of a worker (Mr Craig Ryan) on the site. The
particulars
of the charge against TCR under s 27 of the Occupational Health and
Safety Act were that it “in being an employer, failed to take all
reasonably practicable steps to provide and maintain a working environment
that
was safe, and without risk to the health and safety of its employees by failing
to ensure the power supply to the site was safe
and without risk to its
employees”. At the time of the alleged offence, s 27 of the Occupation
Health and Safety Act was in
the following terms:
“(1) An employer shall take all reasonably practicable steps to protect the health, safety and welfare at work of the employer’s employees.
Maximum penalty: 250 penalty units.
(2) Without limiting subsection (1), an employer contravenes that subsection if the employer fails to take all reasonably practicable steps –
(a) to provide and maintain a working environment (including plant and systems of work) –
(i) that is safe for the employer’s employees and without risk to their health;”
3. The particulars of the charge against Mr Skeers under s 29 of the Occupational Health and Safety Act were that “he, being a workplace supervisor at 21 Whyalla Street, Fyshwick, failed to take all reasonably practicable steps to ensure that a workplace that was under his control was safe and without risk, by failing to ensure that workers were not exposed to contact with live electricity”. At the time of the alleged offence, s 29 of the Occupational Health and Safety Act was in the following terms:
“(1) A person who has, to any extent, control of –
(a) a workplace; or
(b) a means of access to, or egress from, a workplace; or
(c) plant or a substance at a workplace;
shall take all reasonably practicable steps to ensure that it is safe and without risk to health.
Maximum penalty: 250 penalty units.”
4. In the Court below, there was only one issue between the informant, who is
the respondent to the appeal, and TCR, and that was
whether TCR had failed to
take all reasonably practicable steps within s 27 of the Occupational Health and
Safety Act. There were two issues between the respondent and Mr Skeers and they
were whether Mr Skeers had control, to any extent, of a workplace
and, whether
he had failed to take all reasonably practicable steps within s 29 of the
Occupational Health and Safety Act.
5. There is one notice of appeal and TCR
is the first appellant and Mr Skeers is the second appellant. The notice of
appeal contains
seven grounds of appeal. The grounds of appeal were refined and
narrowed by the appellants in the course of their oral submissions.
Further
and better particulars, agreed facts, major participants and witnesses
6. The
appellants sought further and better particulars of the charges before the
hearing. The further and better particulars sought
were as follows:.
“Could you please provide us with the following further particulars in respect of each charge against each defendant.
The further and better particulars provided were, relevantly, as follows:
“In relation to paragraphs 1 and 2.
a) (i) The defendants should have identified a possible hazard being risk of electric shock or electrocution to workers on site.
(ii) The risk was clearly obvious by visual inspection at the point where the workers were required to insert metal screws to fix colour bond sheeting to the walls of the structure.
(iii) At that point there was a cable (which turned out to be live) at the site where the screws were to be fixed. This cable was in close proximity to the wooden noggins to which the screws were inserted. (see photographs provided with brief)
(iv) The process of Risk identification referred to above is defined in the defendant company’s own document entitled ‘Territory Commercial Roofing Metal Hazard profile’ at page 1 row 2 and page 3 row 1, as being the appropriate control measure in this circumstance. This course was not followed and it was a reasonably practicable step for the Company and Mr Skeers to take especially in light of the risk of electrocution versus practicability and costs of conducting the risk assessment.
(v) The defendants should have identified that the cable was live, prior to work commencing and taken the very simple step of isolating that circuit by either turning it off at the mains or tagging it as a live circuit and warning the workers in that vicinity that the cable was a live circuit. They did not do this.
(vi) Additionally this circuit was an unnecessary circuit for the purposes of construction at the site and therefore was not essential for their construction purposes.
7. An agreed statement of facts was tendered in evidence before the Magistrate
and, by reference to those facts, the following was
established.
8. The site
was owned by DR Mackie Pty Limited. The building on the site was completely
gutted and that operation included the removal
of the asbestos roof and walls.
The building also required the rebuilding and extension of steel structures and
the replacement of
the roof and walls with colourbond cladding. Some time in the
early part of 2003 and before March of that year, DR Mackie Pty Limited
hired
Mr Ivan Plovanic to arrange the work required at the site. Mr Plovanic
“contracted” ACT Asbestos Removal Pty
Limited for the removal of the
asbestos roof and walls, and, between 5 February and 5 March 2003, all of the
asbestos material was
removed from the building. On 5 February 2003, TCR gave Mr
Plovanic a quote for the cost of cladding the walls and roof of the building.
The quote was accepted and TCR commenced work on 4 March 2003. About four weeks
before TCR commenced work, Mr Plovanic arranged for
structural steel builders to
commence working on the structural steel construction work. This operation
included welders working
on site welding the construction together.
As to the
circumstances surrounding the death of Mr Ryan, the following was
agreed:
“On the 5th March being the second day on the site for the roofers, the deceased was fixing colourbond sheeting to the walls and roof of the building using a 240 Volt electric fixing gun (a drill with a special driver for the screws to fix the cladding to the building timber battens which was in turn are [sic] supported by the main metal framework of the structure).
The electrical power supply being used by the workers onsite, which included the deceased, was being drawn from the buildings [sic] existing 240 Volt wiring. Specifically the General Power Outlet (GPO) being used by Mr Ryan was located inside the building. An extension lead connected to that GPO ran up onto the roof and into a Residual Current Device (RCD). The fixing gun was then plugged into the RCD via an additional extension lead.
The deceased worked on a metal ladder fixing a panel of colourbond cladding to the outside wall of the mezzanine level of the building when his hand must have made contact with the earthed metal structure of the building. At the same time he was leaning with his groin area pressed up against the metal ladder.
The cable breeched by the screw emanated from a sub board situated in the old office area. This circuit had an isolation switch (on/off switch) and also a circuit breaker fitted which did not trigger when the tek screw breached the cable.”
9. The evidence established that Mr Doug Mackie was the governing director of
DR Mackie Pty Ltd and Mr Plovanic was an employee
of Mr Mackie or his
company. The extent of Mr Plovanic’s responsibilities in relation to the
site is unclear. Together with
the second appellant, Mr Wayne Napier was a
director of TCR. It was Mr Hodges who pierced the cable with a screw. Mr
Douglas
Smith was a director of ACT Asbestos Removal Pty Ltd and the only
identified person to hold a builder’s licence for the site.
Professor
Blackburn was Associate Professor in the School of Electrical Engineering and
Telecommunications at the University of New
South Wales and a witness for the
prosecution and Mr Bruce Walsh was a consulting electrical engineer and a
witness for the defence.
10. Mr Mackie did not give evidence. Mr Plovanic and
Mr Smith gave evidence for the respondent. The appellants called only one
witness
and that was the expert, Mr Walsh. Neither Mr Patrick Skeers, nor
Mr Wayne Napier gave evidence. A written record of an interview
of Mr Napier by
the police on 24 March 2003 was tendered by the respondent and became part of
the prosecution case at trial.
The Magistrate’s reasons
11. As I
have already said, in March 2003, the first appellant was engaged by DR Mackie
Pty Ltd to attach colourbond cladding to the
frame of a large warehouse building
at the site. At that time, the second appellant was a director of the first
appellant. The work
was to be performed by three of the first appellant’s
employees, Mr Ryan, Mr Stuart Cecil Hodges and Mr Bradley Skeers.
The
second appellant attended the site from time to time and he was, as the
Magistrate put it, “clearly in a supervisory role”.
12. The
Magistrate’s description of the key events which form the basis of the
charges was as follows:
“The building had a steel frame with horizontal timber battens crossing the vertical steel struts. On 5 March 2003, Mr Ryan and Mr Hodges were attaching the Colourbond cladding to the exterior of the frame by screwing it to the timber battens. They were working on top of a metal roof over the office area, and Bradley Skeers was on the ground, passing the sheets of cladding up to Mr Ryan and Mr Hodges.
Mr Ryan and Mr Hodges were using power tools that were connected to RCD’s and plugged into the mains power supply. There are no allegations against either defendant in relation to the condition of the equipment that was being used by the employees. It was later assessed as being in a ‘good’ condition.
The timber battens were 150mm wide. The screws the workers used were 25mm long. On the wall on which the men had started working there was a power cable attached to the underside of the timber batten which was at about eye height. The cable ran generally along the middle of the batten except at the right hand end where it deviated and was closer to the edge.
Mr Hodges commenced attaching the cladding at the extreme right hand end of the wall. It was apparently at this time that he had inadvertently pierced the electric cable with a screw that made a connection with the wire. Some time later in the morning Craig Ryan was continuing to attach the cladding along the wall. It was usual for the workers to reach around the cladding and take hold of some part of the steel structure of the frame to gain purchase as they were screwing the cladding on. Mr Ryan was up a ladder performing such a task when he received a severe electric shock. Apparently he had unknowingly earthed the electric current that was flowing on the roof and wall he was working on by leaning against the metal ladder and touching the steel structure of the building. Tragically, Mr Ryan died as a result of the electrocution.”
13. The Magistrate said in her reasons that, in relation to the first appellant,
there was no issue that it was the relevant employer
for the purposes of s 27 of
the Occupational Health and Safety Act and that that section imposed an
obligation on the first appellant which was mandatory. The issue in relation to
the first appellant
was whether it had failed to take “all reasonably
practicable steps” within s 27. The Magistrate said in her reasons that,
in relation to the second appellant, the issues were whether he had control of a
workplace
such that s 29 of the Occupational Health and Safety Act applied to
him and, if yes, whether he had taken all reasonably practicable steps within s
29.
14. The Magistrate started her consideration of the issues by determining
whether the second appellant had, to any extent, control of
the site. She
decided that he did. She found that the second appellant was the direct
supervisor of the first appellant’s employees
on the site. Furthermore, as
a director of the first appellant, the second appellant “had the authority
to determine how and
when his company employees would perform the work that was
contracted to be done”. The Magistrate found that, to conclude that
the
second appellant’s control over the workplace was restricted to “the
immediate vicinity of the roof of the small
office upon which Messrs Ryan and
Hodges were working, the wall upon which they were installing the cladding and
probably the immediate
surrounds of the small office outside the main warehouse
where Mr Brad Skeers was working”, would be to ignore the words “to
any extent” in s 29. The second appellant had the authority of the
contractor (that is, the first appellant) and he at least had control of its
employees
in terms of when and where they were to work and the manner in which
they were to perform their work, and sufficient control to make
proper
arrangements with the owner, or his delegate, in relation to the work to be
performed and the environment in which it was
to be done. The Magistrate
concluded that the second appellant had sufficient control of the workplace
“to invoke the statutory
requirements of section 29”.
15. The
Magistrate then identified what she called the “actual failures” of
the appellants that arose on the evidence.
She concluded that the appellants
failed to determine the course of the relevant electrical cable, failed to
identify that there
was potential for a screw to penetrate the electrical cable
and failed to ensure that the cable was not, and did not become, live
so that it
would pose a serious risk to the safety and health of those working in the
vicinity.
16. The Magistrate found that there were reasonably practicable
steps which the appellants could have, but did not take, namely, a
thorough
visual inspection of the course of the cabling before the commencement of the
cladding installation. The Magistrate said
that such a visual inspection clearly
must not have occurred. Such an inspection would have revealed the hazard and
thereafter, the
appellants could have insisted that the cabling be removed, or
the power to the cabling cut off. Failing those matters being attended
to
immediately, the appellants could have delayed work on the site until they were
addressed. In an important passage for the purposes
of the appeal, the
Magistrate expressed herself in the following way:
“Further, had the defendants been alerted to the hazard, they could have insisted either that the cabling be removed, or that the power to the cabling be cut off, so that there would be no prospect of such an accident that occurred happening. Failing satisfaction in relation to those aspects, the defendants could have chosen to delay commencing the work until these issues were appropriately addressed.”
17. The Magistrate dealt with a submission put by the appellants that, as they had no obligation or entitlement to “provide” or “maintain” (the words used in s 27) the existing or a different electricity supply to the site, it was not for them to alter or interfere with the relevant cable. The appellants developed the submission by contending that the first appellant was a small contractor which had arrived on the site some weeks after work had commenced and that to suggest that it should have interfered with, or had a role in relation to electricity to, the site “would create more problems than it would solve”. The Magistrate rejected this submission and she said:
“To say that such steps would not have been ‘reasonably practicable’ because of the disruption or inconvenience to the owner or others working on the site is to ignore the legal obligation the legislation imposed on the defendants, an obligation that cannot be delegated or avoided because of commercial inconvenience. In this regard I disagree entirely with the submission made by defence counsel in paragraph 108 of his submissions. Further, it matters not that other parties may not have completely fulfilled their legal obligations. That may have been the case, however that does not detract from the fact that both defendants were required under the Act to fulfil certain obligations to (at least) Mr Ryan.”
18. The Magistrate said that the appellants’ obligation arose before notice of a possible hazard and that it was irrelevant whether the power was on when the screw pierced the cable. She also rejected the suggestion that defects in the investigation assisted the appellants in any way. She rejected the suggestion that the fact (assuming it was a fact) that it was not feasible for the appellants to check personally to see if residual current devices (RCDs) had been fitted to the main switchboard or the sub-board assisted the appellants. As to this submission, the Magistrate said:
“However that is exactly the point in question. It was incumbent on both defendants to at least make appropriate enquiries so that they could then determine their next step in accordance with their obligations.”
19. Finally, the Magistrate dealt with a submission made by the appellants in their written submissions. I was provided with a copy of the appellants’ written submissions to the Magistrate. The following submission is made in paragraph 126 of those written submissions:
“There is also no indication of what Mr Mackie or Mr Smith would have informed the defendants if they had been asked whether the power to the light cable was isolated. Given Mr Smith’s evidence that his firm isolated the power as a matter of practice, it is possible that he would have said that he did it. If the power was only turned on shortly before Mr Ryan was electrocuted (which is distinctly possible according to Messrs Milewski, Arnold, Walsh and Professor Blackburn), there is every reason to believe that the defendants would have been told that the power to the light cable was off.”
The Magistrate rejected this submission and said:
“Finally, the defence raised the fact that there was no evidence in relation to any communication between Mr Mackie and TCR and Mr Skeers. The inferences drawn in paragraph 126 of the defence submissions are pure speculation. The evidence is silent or neutral on this point and there is nothing from which such inferences could safely be drawn. In any event, the contents of such communication could only go to a defence of honest and reasonable mistake that may have potentially been available to the defendants. There was as I said, however, no evidence on which such a defence could be based.”
20. The Magistrate concluded her reasons by stating that she was satisfied that
the charge against each appellant was established
beyond reasonable
doubt.
Issues on the appeal
21. The appeal to this Court is by way of a
rehearing. Nevertheless, this Court will only interfere with the
Magistrate’s decision
where an error of law or fact is established
(Petreski v Cargill (1987) 18 FCR 68).
22. The starting point for the
appellants’ submission was the proposition that the respondent, as the
informant, bore the onus
of establishing beyond reasonable doubt that the
appellants had not taken all reasonably practicable steps. In support of that
proposition,
I was referred to the decision of the High Court in Chugg v Pacific
Dunlop Limited [1990] HCA 41; (1990) 170 CLR 249 (“Chugg”). In Chugg, the High
Court considered the scope and effect of s 21(1) and (2) of the Occupational
Health and
Safety Act 1985 (Vic). I will not set out the terms of those
subsections. Under the Victorian Act, the obligation on employers was
defined by
reference to what was “practicable” and the word
“practicable” was defined in the Act. The principal
issue on the
appeal was which party bore the onus of proof on the question of practicability.
The High Court decided that the informant
bore the onus. In the course of their
reasons, Dawson, Toohey and Gaudron JJ said (at 263):
“If the onus is on an informant, the issue is confined by the means which the informant claims were practicable in the circumstances. If the onus is on a defendant, the issue, if confined at all, is confined only by the ‘means of making the place safer which the ingenuity of ... counsel can suggest’ in the course of cross-examination: Gibson, per Lord Diplock. It is impossible to read into s. 21 of the Act an intention to place the onus of proof of the issue of practicability on a defendant when that onus would entail the additional burden of anticipating and negating the practicability of every possible means of avoiding or mitigating a risk or accident that might be raised in the course of cross-examination.”
(Citation omitted.)
23. The appellants’ counsel contrasted the Victorian provisions (as
considered in Chugg) and those in the Occupational Health
and Safety Act with
the position in New South Wales under the Occupational Health and Safety Act
2000 (NSW). Under the New South Wales legislation, it was a defence for a
defendant to prove that steps or measures were not reasonably
practicable (see
ss 8, 10 and 28).
24. The respondent accepted that it bore the onus of
establishing that the appellants had failed to take all reasonably practicable
steps and, therefore, there was no dispute about which party bore the onus of
proof on that issue. The Magistrate appears to have
proceeded on the basis that
the respondent bore the onus, although the appellants submit that when her
reasons are carefully analysed
it can be seen that she reversed the onus of
proof on the issue of reasonable practicability.
25. The obligation in both s
27 and s 29 is to take all reasonably practicable steps to achieve a particular
state of affairs, being either a working environment which is
safe for employees
and without risk to their health (s 27), or a workplace that is safe and without
risk to health (s 29).
26. The Magistrate found, and I do not understand it
to be submitted on appeal that she erred in so doing, that the working
environment
on the site was not safe for the first appellant’s employees
and without risk to their health, and she found that the workplace
on the site
was not safe and without risk to health. The central issue was whether the
appellants and each of them had taken all
reasonably practicable steps for the
purposes of the statutory provisions.
27. The further and better particulars
provided prior to trial are set out above (at [6]) and they set out the
reasonably practicable
steps identified by the prosecution at that stage of the
proceeding. In her reasons, the Magistrate has accepted the prosecution
case on
paragraph a)(i) to (iv) inclusive of the further and better particulars and the
proposition that the appellants should have
identified that the cable was live
before commencing work. She then, in the passage set out in [16] above,
identified the reasonably
practicable steps that the appellants could have taken
had they been alerted to the hazard.
28. In essence, the further and better
particulars go on to allege that the appellants could have turned off the
electricity or warned
their workers that there was a live cable in the area in
which they were working (paragraph a)(v)). The findings of the Magistrate
set
out in the passage referred to above (at [16]) represent a refinement, or
perhaps even a departure, from the particulars. The
appellants do not complain
about the fact that there was a refinement or departure.
29. In the passage
referred to above (at [16]), the Magistrate identifies two steps which were
reasonably practicable. First, the
appellants could have insisted (presumably to
others) that the cabling be removed, or secondly, the appellants could have
insisted
that the power to the cabling be cut off so that, in each case,
“there would be no prospect of such an accident that occurred
happening”. Failing satisfaction in relation to those aspects, the
appellants could have chosen to delay commencing the work
until “these
issues” were appropriately addressed (again, presumably by
others).
30. It is important to note a number of matters about the approach
taken by the Magistrate in the above passage. First, I think the
Magistrate is
putting the step of insisting that the cable be removed and the step of
insisting the power to the cabling be cut off
as alternatives and not cumulative
steps that the appellants should have carried out. In other words, one or the
other (with any
necessary consequential steps such as delaying the commencement
of work) would be sufficient to constitute all reasonably practicable
steps.
Secondly, I do not think that in referring to the step of insisting that the
power to the cabling be cut off, the Magistrate
had in mind no more than a
request or even demand by the appellants that that be done. I think the
Magistrate had in mind not only
a request or demand by the appellants, but some
reasonable evidence provided to the appellants that the request or demand had
been
met. It seems to me that that conclusion follows from the
Magistrate’s use of the words, “so that there would be no prospect
of such an accident that occurred happening,” and her use of the words,
“Failing satisfaction in relation to those aspects
...”. Put another
way, while the step of insisting that the cabling be removed is relatively
straightforward in that the cable
is either removed or not, the step of
insisting that the power be cut off, by contrast, involves not simply a request
or demand and
then a response that it had been met, but evidence that it had
been cut off and would remain off by reason of the fact that measures
appropriate to the circumstances had been taken.
31. The thrust of the
appellants’ submission on the appeal is that there was no evidence before
the Magistrate that they had
not insisted to others on the site that the power
be cut off, and therefore, the respondent had failed to discharge the onus of
establishing
beyond reasonable doubt that all reasonably practicable steps had
not been taken. In other words, the prosecution had failed to negate
beyond
reasonable doubt the possibility of a conversation between the first or second
appellant or Mr Napier, on the one hand, and
Mr Mackie or Mr Plovanic or
possibly somebody else in control of the site, such as Mr Smith, on the other.
As I have said, none
of the second appellant, Mr Napier or Mr Mackie gave
evidence before the Magistrate, although a written record of interview of
Mr Napier
was part of the prosecution case. Furthermore, the appellants
submit that the fact that the power was on at the time Mr Ryan was
electrocuted
was of limited significance in terms of whether an inference could be drawn as
to whether the appellants had insisted
that the power to the cabling be cut off,
because there was evidence before the Magistrate which supported a finding that
the power
may have been off until shortly prior to the time at which Mr Ryan was
electrocuted. The Magistrate did not find it necessary to
consider whether such
a finding should or should not be made.
32. The appellants put a broader
submission to the one I have just identified and that is that, on the question
of conversations about
the supply of electricity to the cabling, the Magistrate
had in effect reversed the onus of proof. It is convenient to deal with
that
broader submission first. The appellants refer to the passage in the
Magistrate’s reasons set out in [19] above in support
of their submission.
It is necessary to examine the passage carefully. In my opinion, the points to
be made about the passage are
as follows.
33. First, I do not think that the
Magistrate reversed the onus of proof. The Magistrate’s reasons must be
read as a whole.
Earlier in her reasons, the Magistrate made it clear that she
was satisfied that the appellants had not taken the reasonably practicable
steps
she had identified. The starting point for a consideration of her reasons on
this issue is the finding that the appellants
had not conducted a visual
inspection and were unaware of the hazard. The other failures followed from this
and it seems to me clear
that the Magistrate did not resolve the factual issues
by imposing an onus of proof – whether legal or evidentiary –
on the
appellants.
34. Secondly, it must be said in fairness to the Magistrate that
it is not entirely clear how the submission she is dealing with was
formulated.
The written submission made to the Magistrate by the appellants seems to have
been that, because it was not known what
Mr Mackie or Mr Smith would have
said if asked whether the power to the light cable had been isolated, and they
may have said
the power had been isolated, it had not been established that
asking them, or either of them, was a reasonably practicable step in
terms of
producing the working environment or workplace referred to in the Occupational
Health and Safety Act. That seems to be a different submission to the submission
now put, namely, that the respondent has not proved that the appellants
did not
make a relevant inquiry.
35. Thirdly, although it is true that there was no
evidence of conversations between Mr Mackie and TCR and the second
appellant,
there was evidence of conversations between Mr Plovanic, on the one
hand, and Mr Napier and the second appellant, on the other. For
some purposes at
least, Mr Plovanic was acting as Mr Mackie’s agent. The significance of
the conversations involving Mr Plovanic
is dealt with below (at [40]).
36. Fourthly, the significance of a defence of an honest and reasonable
mistake of fact (Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536) is not clear to me.
Whether it is available as a matter of law in relation to the charges against
the appellants was not the subject
of submissions and I will refrain from making
any observations on that question. The point is that it does not seem to have
been
relevant on the facts.
37. I turn now to the appellants’
submission that it was not open to the Magistrate on the evidence to conclude
that the appellants
had not taken all reasonably practicable steps. It is trite
to say that the Magistrate was required to make findings of fact on the
basis of
all the evidence before her and she was entitled to draw appropriate inferences.
The appellants, of course, were not required
to give evidence and no adverse
inference is to be drawn from the fact that they did not give evidence. It seems
to me that, having
regard to all the circumstances identified in the
Magistrate’s reasons as summarised above, it was open to the Magistrate to
conclude that the appellants had not taken all reasonably practicable steps.
This conclusion is reinforced by two matters.
38. The first matter involves a
consideration of the whole of the Magistrate’s reasoning, not simply the
last one or two steps.
The context in which this is to be done is that the
Magistrate made clear findings as to the cause of the accident, the location
and
course of the cabling and the extent of the danger of a live cable. As one of
the first appellant’s employees (Mr Hodges)
said in his evidence, all
cables are presumed “hot” or live. It seems to me that the
Magistrate has found that the appellants
did not identify the hazard of a screw
penetrating the cable because of the deviation of the cable from the centre of
the timber
batten to a place where it potentially posed a problem. She said, for
example:
“Such a visual inspection clearly must not have occurred.”
As a starting point, that conclusion makes the conclusions which follow,
including the conclusion that the appellants did not insist
that the power to
the cabling be cut off, inevitable or, at least, a conclusion clearly open to
the Magistrate.
39. Secondly, there was evidence before the Magistrate
supporting a conclusion that the appellants had not insisted that power to
the
cabling be cut off “so that there would be no prospect of such an accident
that occurred happening”. Although Mr
Plovanic gave evidence, the only
conclusion the Magistrate made in connection with his evidence was to the effect
that the lengthy
examination of the roles of Mr Plovanic and Mr Mackie
in relation to the control of the building site, was “beside
the
point”.
40. In his evidence, Mr Plovanic said that his occupation was
“building maintenance” and that he worked on the building
on the
site for Mr Mackie, the owner of the property. He had worked for Mr Mackie doing
maintenance work for 26 or 27 years. It appears
that he also did some building
work for Mr Mackie. He arranged for TCR to give a quote for the roof cladding.
He spoke to the second
appellant, who referred him to Mr Napier. He spoke
to Mr Napier and arranged for TCR to come to the site. He also arranged for
the
quote given by the welding company. Mr Plovanic had the key to the site.
Importantly, Mr Plovanic said he did not have any discussion
at any stage with
Mr Napier or the second appellant about “the electricity situation at
the building”. It appears
that, at and around the time of the accident,
Mr Mackie did not attend the site because he was in Sydney due to his
wife’s
illness. Mr Plovanic said that “nobody” had
control of the site.
41. In his record of interview, Mr Napier said that he
dealt with Mr Plovanic in providing a quote for TCR to carry out work on the
site. He never discussed with Mr Plovanic isolating the electricity on the site
and he was not aware of any discussions between Mr
Plovanic and the second
appellant about that subject. He gave the following answer in answer to a
question during the interview:
“Q 143 Are you aware of the preliminary on site meeting had it ever been held to identify potential electricity safety risks at all?
42. In my opinion, it was open to the Magistrate to conclude that the appellants
had not taken all reasonably practicable steps within
the relevant
sections.
43. The appellants put in written submissions. As I have said,
those submissions were refined and narrowed in the course of oral submissions.
Nevertheless, none of the written submissions were abandoned and it is
appropriate that I address the main points made in the written
submissions other
than those I have already addressed. The appellants submitted that the
“first key issue” was who had
control of electricity to the site and
to what, if any extent, that included the appellants, and the “second key
issue”
was to determine the appellants’ responsibility in relation
to electricity on the site. The appellants submitted that consideration
of these
matters leads to the conclusion that the appellants’ obligation was to
make an inquiry. They submitted that that is
what the Magistrate ultimately
concluded. No doubt, control of the site and of the electricity on the site are
matters to be considered,
but it is important to bear in mind that the duties
which are in issue in this case are, as far as TCR is concerned, a duty by an
employer to an employee involving the taking of all reasonably practicable care
and, secondly, as far as Mr Skeers is concerned,
a duty of a person who has, to
any extent, control of a workplace. It is also important to bear in mind that it
is an incomplete
statement to say that the Magistrate found that the
appellants’ duty was a duty to inquire and no more. An inquiry was one
step and it should have been made so that the appellants could then, as the
Magistrate said at one point in her reasons, “determine
their next step in
accordance with their obligations”.
44. Submissions were made as to the
extent of the second appellant’s control of the workplace. The amended
notice of appeal
and the oral submissions suggested that the appellants were not
seeking to raise the issue whether the second appellant had control
of the
workplace (or part thereof) for the purposes of s 29. The submissions are made
in the context of both appellants and seemed to be deployed to narrow the
reasonably practicable steps the
appellants could take. To some extent, these
submissions miss the point or seek to support a position that is not really in
contest.
The Magistrate’s finding was that the appellants failed to insist
that measures be undertaken by others or that they instruct
their workers not to
commence work on the site.
45. The appellants emphasised evidence from
various witnesses as to the responsibility of others on the site to undertake
various
safety measures. No doubt if others who had some control over the site
had undertaken various safety measures that would be relevant
to the question of
what were the reasonably practicable steps which must be undertaken by the
appellants. However, the mere fact
that others had an obligation to do so is of
no or certainly little relevance.
46. The appellants submitted that the
Magistrate erroneously concluded that the power to the light cable should have
been off, whereas
that was but one alternative and the other was that the power
had to be fitted with a residual current device. I reject that submission.
The
Magistrate seems to have allowed for the possibility of residual current devices
being fitted to the main switchboard or the
sub-board. In any event, as I read
the Magistrate’s reasons, even if she did overlook that matter, it does
not affect the soundness
of her conclusions.
Conclusion
47. In my opinion,
the appellants have failed to demonstrate that the Magistrate’s decision
was in error and the appeal must
be dismissed. I will hear the parties as to the
costs of the appeal.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.
Associate:
Date: 17 September 2009
Counsel for the Appellants: Mr F J Purnell SC with Mr P A Walker
Solicitor
for the Appellants: Meyer Vandenberg
Counsel for the Respondent: Mr J White
with Ms M Hunter
Solicitor for the Respondent: Director of Public
Prosecutions
Date of hearing: 18 February 2009
Date of judgment: 17
September 2009
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