Daly Smith Corporation (Aust) Pty Limited and Anor v Workcover Authority of New South Wales (Inspector Mansell) [2006] NSWIRComm 111 (26 June 2006)

Last Updated: 26 June 2006

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Daly Smith Corporation (Aust) Pty Limited and Anor v WorkCover Authority of New South Wales (Inspector Mansell) [2006] NSWIRComm 111

FILE NUMBER(S): IRC 2156

HEARING DATE(S): 17/10/2005; 25/10/2005

DECISION DATE: 07/04/2006

PARTIES:

First appellant

Daly Smith Corporation (Aust) Pty Limited

Second appellant

Thomas Edwin Curtis Smith

Respondent

WorkCover Authority of New South Wales (Inspector Mansell)

JUDGMENT OF: Wright J President Walton J Vice-President Backman J

LEGAL REPRESENTATIVES

First and second appellants:

Mr J. Phillips, of Senior Counsel

Solicitors:

Deacons

Respondent:

Mr P. Skinner, of counsel

Solicitors:

Phillips Fox

CASES CITED: Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch’ng) (1999) 90 IR 432

Inspector Jorgenson v Daoud (2005) 143 IR 170

Markarian v R (2005) 215 ALR 213

McMartin v Newcastle Wallsend Coal Company and others [2004] NSWIRComm 202

Morrison v Powercoal Pty Ltd and Another (2004) 137 IR 253

Ove Arup Pty Ltd v WorkCover Authority of New South Wales (Inspector Mansell) (2005) 141 IR 78

Romeo v The Conservation Commission (Northern Territory) (1998) 192 CLR 431

State of New South Wales (NSW Police) v Inspector Covi [2005] NSWIRComm 303

South Sydney Junior Rugby League Club Limited v WorkCover Authority of New South Wales (Inspector Bestre) (2005) 142 IR 373

WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 100 IR 182

WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings and Anor (2004) 135 IR 166

WorkCover Authority of New South Wales (Inspector Keenan) v Leighton Contractors Pty Ltd (2005) 147 IR 329

WorkCover Authority of New South Wales (Inspector Legge) v Coffey Engineering Pty Limited (No. 2) (2001) 110 IR 447

WorkCover Authority of New South Wales (Inspector Mansell) v Daly Smith Corporation (Aust) Pty Limited and Thomas Edwin Curtis Smith [2004] NSWIRComm 349

WorkCover Authority of New South Wales (Inspector Mansell) v Daly Smith Corporation (Aust) Pty Limited and Thomas Edwin Curtis Smith [2005] NSWIRComm 101

WorkCover Authority of New South Wales (Inspector Mansell) v Hayman Industries Pty Ltd [2003] NSWIRComm 154

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

Criminal Appeal Act 1912

Criminal Appeal Rules

Industrial Relations Act 1996

Occupational Health and Safety Act 2000

Occupational Health and Safety Act 1983

JUDGMENT:

- 37 -

INDUSTRIAL COURT OF NEW SOUTH WALES

FULL BENCH

CORAM: Wright J, President

Walton J, Vice-President

Backman J

Friday, 7 April 2006

Matter No IRC 2156 of 2005

Daly Smith Corporation (Aust) Pty Limited and Anor v WorkCover Authority of New South Wales (Inspector Mansell)

Appeal by Daly Smith Corporation (Aust) Pty Limited and Thomas Edwin Curtis Smith against the decisions of Justice Staunton given on 10 December 2004 and 7 April 2005 in Matter Nos IRC 3374 and 3376 of 2002.

JUDGMENT OF THE COURT

[2006] NSWIRComm 111

1 These proceedings involve appeals against conviction and sentence under section 196 of the Industrial Relations Act 1996 and s 5AA(1) of the Criminal Appeal Act 1912 as recorded and imposed by Staunton J in WorkCover Authority of New South Wales (Inspector Mansell) v Daly Smith Corporation (Aust) Pty Limited and Thomas Edwin Curtis Smith [2004] NSWIRComm 349 and WorkCover Authority of New South Wales (Inspector Mansell) v Daly Smith Corporation (Aust) Pty Limited and Thomas Edwin Curtis Smith [2005] NSWIRComm 101.

2 Following pleas of not guilty to charges before her Honour under s 15(1) of the Occupational Health and Safety Act 1983 in respect of the corporate appellant, and ss 15(1) and 50(1) of the same statute in respect of the personal appellant, her Honour found the offences proven and imposed penalties.

3 The offence under s 15(1) arose in circumstances where on 30 June 2000 Steven Rowe was operating a power press at a factory at Padstow owned by Hayman Industries Pty Limited. Mr Rowe at the time had been employed by the corporate appellant for about four days and had been hired out to Hayman by that appellant to work as a process worker and press operator at the factory. Upon arrival at the factory Mr Rowe was given some instructions by Hayman in relation to the operation of the power press. One instruction he received was that the press would not stroke (that is, move up and down) if the guard doors were open.

4 The power press in question was a John Heine 208 AG Series One Power Press. It was used at the factory to make metal pole caps which were then attached to the top of telegraph poles. Expert evidence given during the proceedings suggested that if the guard which functioned to separate the worker from the machine was up when it was stroking, then the machine would only perform a half stroke. Documentation tendered in evidence concerning the press indicated the dangers associated with its use, including the following warning:

The power press has been recognised for many years as being one of the most dangerous machines used in the industry. Records clearly indicate that many serious accidents are still occurring due to persons’ hands being trapped between the tool and die, resulting in severe mutilation of the fingers or hand.

It is essential for the safe operation of power presses that both the employer and employee should recognise the hazards connected with their use.

5 When Mr Rowe commenced working for the corporate appellant he was nineteen years of age, unskilled and had had previous employment as a builders labourer, serviceman/driver and yardsman. He had no on-the-job experience operating a power press. Before he commenced working at the factory for Hayman, the corporate appellant handed him a card entitled “DSC Personnel Information for Employees”. This card contained the following information under the sub-heading of “Safety”:

Whilst working for DSC you are instructed not to undertake any unsafe activities. If your supervisor asks you to perform any tasks you consider may be a danger to yourself or others, or any other problems arise, please politely ask the supervisor for the opportunity to consult with DSC first. Ring your Branch Manager immediately for guidance.

6 On the afternoon shift on 30 June 2000 Mr Rowe was operating the power press when he opened the guard gate and attempted to remove a pole cap by hand. As he did so the machine came down severing four fingers of his left hand.

Proceedings at first instance

7 The charge under s 15(1) of the 1983 Act against Daly Smith Corporation, the corporate appellant, alleged that it:

Failed to ensure the health, safety and welfare at work of its employees at the premises, in particular, Steven George Rowe, contrary to Section 15(1) of the Occupational Health and Safety 1983, in that it failed to ensure a system of work for the operation of a John Heine 208AG Series One Power Press (Press) that was safe and without risks to health.

The charge was particularised as follows:

(a) It failed to make adequate enquiries as to Rowe’s qualifications to operate the Press;

(b) It failed to provide adequate warnings and/or information to its employees about the risks involved and the safety precautions to be utilised while operating the Press;

(c) It failed to provide adequate instruction and training to its employees in relation to the operation of the Press;

(d) It failed to provide adequate supervision to its employees operating the Press;

(e) It failed to carry out an adequate risk assessment of the hazards of the operating of the Press;

(f) It failed to ensure adequate guarding of the die area of the Press;

8 The second appellant was charged in the same terms as the corporate appellant and being deemed to have committed the offence under s 15(1) as a director of the corporate appellant by virtue of s 50(1) of the 1983 Act.

9 The trial judge, Justice Staunton, was not satisfied beyond reasonable doubt the particulars (a) and (f) had been made out by the respondent. Her Honour considered that particulars (b) and (c) were inherently duplicitous and dealt with them together. Her Honour took the view that the failure to provide adequate warning as alleged in particular (b) formed part of a pro-active approach to training and instruction in relation to the safe operation of the press. Particulars (c), (d) and (e) were then considered and found to be made out beyond reasonable doubt. Her Honour also found that the defences under s 53 and s 50(1) had not been established by the appellants to the requisite civil standard.

10 In relation to particular (c) her Honour relied on the evidence before her which indicated that the press was a dangerous piece of machinery and demanded, she said, "a rigorous approach" to the provision of adequate training and instruction. Reliance was also placed on the evidence of the second appellant as to its expectation that Hayman would provide the necessary training for the operation of any particular machinery. Given that approach her Honour said:

[I]t was imperative that DSC take steps to ensure that the training and instruction that was given to its employees was indeed adequate in every respect.

11 Her Honour then considered the training and instruction provided by Hayman to Mr Rowe and found that it was inadequate in that it did not focus on what should have been the primary piece of training and instruction, namely that, regardless of whether the guard on the press was up or down an operator should not place his or her hands near the working parts of the press. The role of the corporate appellant in the provision of training and instruction to Mr Rowe, her Honour found was “cursory” and not in accordance with its policy which was to “establish exactly” what plant and equipment Mr Rowe would be required to operate. Given the potential of the press to cause injury the absolute requirement of the branch manager was, her Honour said, to visit the factory and inspect the equipment.

12 Her Honour found unsatisfactory in many respects evidence given during the proceedings by two branch managers employed by the corporate appellant. The evidence of one manager her Honour found was largely reconstructive, consisting of what “would have been done” in terms of relevant training and instruction and lacking in any specific recollection of any such training or instruction given to Mr Rowe in relation to his employment at Hayman’s factory. The evidence of the other manager her Honour similarly found was lacking in any independent recollection of Mr Rowe’s particular circumstances, and, in addition, disclosed a lack of prior experience in the manufacturing industry. Neither witness, on the evidence, had any formal occupational health and safety training at the time of the offences and had not displayed any ability to undertake a risk assessment based on the safe operation of the press.

13 The corporate appellant’s general manager also gave evidence which her Honour found acknowledged the lack of formal training provided to the branch managers. The effect of this evidence, according to her Honour, was that notwithstanding the existence of a written policy that contained certain mandatory requirements as to what branch managers must do, there was:

[N]o commitment by management in a real sense to ensure that that was done in a way that resulted in a comprehensive approach to those matters in order to ensure a work place free of risks to safety. That is, adequate and proper training, instruction and supervision.

14 As a prelude to findings concerning the corporate appellant’s supervision of Mr Rowe, her Honour found that the supervision afforded to Mr Rowe by Hayman at the factory was inadequate. Her Honour was satisfied on the evidence that that supervision consisted of observing Mr Rowe at work on the press using his hands. The role of the corporate appellant in relation to its obligation to supervise was found to be inadequate. In her Honour’s words, simply enquiring about supervision without more was insufficient. Her Honour added,

In the case of unskilled workers such as Mr Rowe, ongoing supervision to ensure that the work is being performed safely is essential. I am satisfied that there was no system in place by DSC to ensure ongoing supervision in a way that ensured Mr Rowe was operating the press safely.

and,

I am satisfied that the defendant’s role in ensuring the safe and ongoing supervision of Mr Rowe was inadequate. Any suggestion that it was incumbent on Mr Rowe to notify them if he felt that the system was not safe is simply transferring their absolute obligation in a way that the Act simply does not contemplate. It is not for Mr Rowe to be able to recognise the potential risks to safety. It is for the employer to ensure that Mr Rowe was instructed, trained and supervised in a way that ensured that potential risks to safety were recognised and were dealt with in ensuring the system of work in place negated those risks.

15 The failure to carry out an adequate risk assessment by the corporate appellant was held to have been made out on two bases. First, although the evidence established that its employees did visit the factory, observe the machines and make general enquiries about those machines, no steps were then taken to formally assess the hazards associated with operating the press and no request was made of Hayman as to whether there existed any copy of a formal risk assessment in Hayman’s possession. These failures were considered by her Honour in the context of other evidence that the press was “replete with hazards”, as highlighted for example by the literature about the press from the manufacturers. Secondly, the corporate appellant’s own policy recognised the existence of potential hazards in the operation of plant or equipment if incorrectly or carelessly operated. Her Honour extracted the relevant portion of the policy which dealt with this, which was in the following terms:

If upon a Branch Manager conducting a site/equipment inspection and not being able to satisfy him/herself that the equipment is safe and that the system of work is safe, the Branch Manager is authorised to offer the client one (1) hour (for free at DSC expense) of an occupational health and safety consultant’s time to do a specific inspection and recommendation.

Her Honour found that, implicit in that part of the policy, was an acknowledgement by the corporate appellant of its obligation to ensure workers’ safety. Necessary compliance with that obligation entailed the undertaking of a risk assessment.

16 Her Honour approached the statutory defences raised by the corporate appellant by reference to the relevant authorities and found in relation to the s 53(a) defence that the provision of training, instruction and supervision and the carrying out of a risk assessment were within the capacity of the corporate appellant and able to be achieved in a number of ways. It would have been appropriate, for example, her Honour found, for the corporate appellant to have taken steps to ensure that Hayman provided adequate training, instruction and supervision in relation to the operation of the press. Instead, the corporate appellant paid “lip service” to its policy and did not on the evidence, having placed reliance on Hayman in that regard, then follow through with the necessary procedures to ensure that Hayman had discharged its obligations on behalf of the corporate appellant’s employees, in particular Mr Rowe. The obligation of the corporate appellant to ensure an adequate risk assessment was undertaken could have been discharged, her Honour found, by requesting Hayman to undertake one and then obtaining a copy in order to advise and warn Mr Rowe of the potential hazards associated with the operation of the press. It was also open to the corporate appellant under the terms of its own policy to obtain an independent assessment of the risks.

17 In relation to the s 53(b) defence her Honour was satisfied that the corporate appellant at all times had within its control and ability the capacity to ensure adequate training, instruction and supervision and to ensure that the risk to safety which arose in relation to the operation of the press was properly assessed. In this regard, her Honour said:

There is no evidence before me that would establish that it was not possible or practicable for the defendants to make provision for such matters in conjunction with Hayman Industries or, alternatively, in relation to a risk assessment, utilise their own resources where that became necessary in accordance with DSC’s own policy.

18 Her Honour then directed her attention to the defences raised under s 50(1) by the second appellant. She found on the evidence that the second appellant was a director of the corporate appellant and also concerned in its management. In this latter context, her Honour observed that the evidence given by the second appellant confirmed a “significant and hands-on role” in the corporate appellant’s operations. This was evident from his active involvement in formulating safety policy and because he was in the hierarchy of supervision, the one to whom the corporate appellant’s general manager was required to report problems on a daily basis. A submission made on behalf of the second appellant during the proceedings at first instance was that as a prerequisite to a consideration of the defences under s 50(1) the prosecutor must negative the s 53 defences. This submission was rejected. Her Honour relied in this regard on her own findings made in McMartin v Newcastle Wallsend Coal Company and others [2004] NSWIRComm 202 at [954] – [962]. Her Honour then approached the s 50(1) defences on the basis that the onus rested on the second appellant to establish them to the requisite civil standard.

19 Her Honour was satisfied that the second appellant was a person in a position to influence the conduct of the corporate appellant. This was because as a managing director he was instrumental in formulating the corporate appellant’s occupational health and safety policy and, according to his own evidence, had been involved for many years in addressing the corporate appellant’s safety responsibilities. Notwithstanding these assertions, the evidence showed that the second appellant did not attend to, nor affect any concern about the overall conduct of the corporate appellant’s business, in particular those matters pertaining to safety.

20 Her Honour, in assessing whether the second appellant had exercised all due diligence to prevent a contravention by the corporate appellant, rejected a submission put to her on the second appellant’s behalf that he had a safety system in place to manage risks and that he adequately supervised compliance with that system. Her Honour found the evidence was to the contrary; namely, that although the second appellant was directly responsible for the corporate appellant’s safety policy being developed, he did not use all due diligence to ensure that the policy became part of a process to ensure that the work sites to which employees of the corporate appellant were safe and free of risks to safety.

21 On the evidence, the corporate appellant’s management staff were not equipped to discharge its statutory obligations under s 15(1) of the Act or even implement its own policy. The evidence suggested that the second appellant regarded the corporate appellant’s general manager as having the responsibility for adequately supervising compliance with the safety system. The effect of the evidence, in this regard, however, was that the reliance on the general manager to identify and manage safety risks without ensuring that the manager had the necessary skills her Honour found was insufficient. In addition, it was incumbent upon the second appellant having placed reliance on the branch manager to ensure compliance on the part of the general manager with established safety standards. This required a process of review and auditing in relation to both the management staff and employees such as Mr Rowe. On the evidence, her Honour found that this had not been done by the second appellant.

Grounds of appeal

22 The grounds of appeal are numerous and are as follows:

(1) the trial judge took into account irrelevant considerations and failed to take into account relevant considerations;

(2) the trial judge’s decision is either not supported by the evidence or is against the evidence;

(3) the trial judge erred in not giving any, or any sufficient, weight to the precise particulars of failure alleged against the Appellants by the Respondent;

(4) the trial judge erred in finding guilt in relation to a failure not alleged against the Appellants by the Respondent;

(5) the trial judge erred in finding a causal nexus between the allegations of failure and a breach of the Act;

(6) the trial judge erred in finding guilt in relation to the allegation of failure that the Appellants failed to provide adequate instruction and training;

(7) the trial judge erred in finding guilt in relation to the allegation of failure that the Appellants failed to provide adequate supervision;

(8) the trial judge erred in finding guilt in relation to the allegation of failure that the Appellants failed to carry out an adequate risk assessment;

(9) the trial judge erred in not having any, or any sufficient, regard to the burden of proof which was always on the Respondent (the prosecutor below);

(10) the trial judge erred in not giving any, or any sufficient, weight to the evidence given by the defendants and their expert concerning the defences raised under section 53(a) and 53(b) of the Act;

(11) the trial judge did not give sufficient reasons for rejecting the defences raised under sections 53(a) and 53(b) of the Act;

(12) the trial judge did not give any, or any sufficient, reasons for rejecting the evidence given by the defendants and their expert concerning the defences raised under section 53(a) and 53(b) of the Act;

(13) the trial judge erred in failing to follow and apply decisions of superior courts interpreting the words “reasonably practicable” in section 53(a) of the Act;

(14) the trial judge misdirected herself concerning the proper interpretation of the words “reasonably practicable” in section 53(a) of the Act;

(15) the trial judge erred in failing to follow and apply decisions of superior courts in interpreting the words “due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision” in section 53(b) of the Act;

(16) the trial judge misdirected herself concerning the proper interpretation of the words “due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision” in section 53(b) of the Act;

(17) the trial judge erred in not finding the defences set out in sections 53(a) and 53(b) of the Act proven;

(18) the trial judge erred in law in finding an offence proved against the Second Appellant pursuant to section 50;

(19) the trial judge misdirected herself concerning the proper interpretation of section 50 of the Act;

(20) the trial judge erred in failing to follow and apply decisions of superior courts interpreting section 50 of the Act;

(21) the trial judge erred in law in finding that section 50 creates a separate offence under the Act;

(22) the trial judge misdirected herself concerning the proper interpretation of the words “due diligence” in section 50 of the Act;

(23) the trial judge erred in imposing penalties that were excessive in relation to the finding of fault against the Appellants;

(24) the trial judge erred in failing to apply section 10 of the Crimes (Sentencing and Procedure) Act 1999 to the Second Appellant;

(25) the trial judge erred in ordering the Appellants to pay the costs of the proceedings including a moiety.

23 Many of the grounds overlap and where this has occurred they will be dealt with together.

Grounds 1 and 2

24 The first two grounds of appeal raise an issue that her Honour failed to take into account in her reasons and findings the evidence of two witnesses called by the appellants. The first witness, John Heine, was a sales manager employed in that capacity by the manufacturer of the power press, the subject of the charges. Mr Heine gave evidence about the design and operation of the press, and the training that would usually be provided on its operation. In this latter aspect, according to Mr Heine, quite often the trainer would not indicate the purpose of the guards. Mr Heine also gave evidence that the guards situated in front of the stroking mechanism could not open while the press was in motion. It will be recalled that this was an instruction given to Mr Rowe by a Hayman supervisor on the day he commenced working at the factory (the same day as the accident). Mr Heine also gave evidence concerning what might happen if the press was not properly maintained.

25 A review of this evidence reveals, first, that Mr Heine was not asked any questions about any aspects of safety in the context of training on the operation of this press. Secondly Mr Heine's commentary on the service record of the press and possible faults arising as a consequence of a lack of maintenance were not relevant to any of the particulars of the charges. The corporate appellant was not charged with a failure to ensure that the press was adequately maintained for example. Thirdly, the evidence insofar as it might have gone to the adequacy of the guarding is not relevant because her Honour found that the particular relating to adequate guarding had not been made out by the respondent beyond reasonable doubt. Fourthly, the evidence given by Mr Heine about the design of the press and the specific fact that the guard could not open while the press was in motion would not have assisted the respondents. The evidence of the design of the press had no real relevance to the change and the evidence in relation to the guard was directly contradicted by the circumstances of the accident.

26 Seen in this context, we consider that no error is disclosed in the judgment by reason of her Honour’s failure the take into account the evidence of Mr Heine. Given the view to which we have come about the relevance of his evidence and the failure to direct any specific questions to Heine about the safety aspects associated with the operation of the press it was open to her Honour if she so chose to give the evidence no weight in the assessment of the charges.

27 The second witness was Andrew Murray Ross, a chartered accountant who had been engaged by the appellants to prepare calculations in the event that the corporate appellant was required to employ risk assessors, supervisors and trainers for its employees hired out to a range of different industries and industrial sites. This ground as we understand it relies on the existence of error by reason again of a failure on the part of her Honour to take the evidence into account. In our view, such reliance misconceives the findings of her Honour made in relation to the status of the corporate appellant as a labour hire company and its attendant statutory obligations under the occupational health and safety legislation, in circumstances where it had relied on the host employer to ensure the safety of the workers hired out by the corporate appellant. As her Honour found, in such circumstances it is incumbent upon the labour hire company to make proper inquiries and implement proper processes to in turn ensure that the measures taken by those employers are adequate to ensure the safety of the workers. This approach, which was open to her Honour, was consistent with a long and well-established line of authority in this jurisdiction concerning the obligations of labour hire companies under the legislation. This point will be discussed in more detail in relation to grounds 3 and 4 of the appeal.

28 Accordingly these grounds of appeal fail.

Grounds 3 and 4

29 Grounds 3 and 4 rely on a construction of particulars (c), (d) and (e) which allege failures to provide adequate training, instruction, supervision and a failure to carry out an adequate assessment of the risk to safety. According to the appellants, the particulars, as expressed in terms of a failure “to provide” and “to carry out”, import the requirement upon the corporate appellant to directly make provision for those measures, the subject of the particulars, the corollary of this being the requirement upon a prosecutor to prove the failures to make such direct provision beyond reasonable doubt. In support of this submission the appellants sought to draw a distinction between a failure to ensure and a failure to provide, the former applying to circumstances where reliance by the labour hire company is placed on the host employer to provide adequate training, and the attendant obligation falling on the labour hire company to then take the appropriate steps to ensure the training, as necessary, is provided in full discharge of its statutory obligations.

30 The same submission had been made on behalf of the appellants and rejected at first instance. Her Honour dealt with the submission in the following way:

On behalf of the defendants, it was contended that the way in which the prosecutor had pleaded the particularised failures gave rise to a proposition that it was being alleged that the use of the expressions in the alleged failures pleaded of 'it failed to provide', 'it failed to carry out' and 'it failed to ensure' gave rise to the assertion on the part of the prosecution case that it was an absolute requirement on the part of the defendants to have, for example, employed its own persons to provide the requisite training, instruction and supervision, to carry out its own risk assessment and inspection of the Press for the purposes of confirming adequate guarding. I have to say that it is not a proposition that I believe can be construed from the pleadings, nor indeed as the law applies, in relation to labour hire companies for the purposes of their obligations arising under the Act.

Further, the obligation imposed on the defendants has to be seen in the context of the offence alleged, arising as it does under s15(1) of the Act. The nub of that obligation giving rise to the offence is that the employer, that is, he, she or it, shall ensure the health, safety and welfare at work of its employees by providing a workplace free of risks to safety. In relation to a labour hire company, that obligation remains constant and is not subrogated by any obligation that arises under s16(1) of the Act on an employer who has the labour hire company's employees working at its premises.

31 We consider the approach taken by her Honour was entirely in accordance with the prevailing authorities dealing with the obligations of labour hire companies which her Honour was, of course, bound to follow. The correct approach in relation to the obligation imposed on labour hire companies such as the corporate appellant was perhaps best exemplified in the judgment of the Full Bench in Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch’ng) (1999) 90 IR 432 at 455 and 456 as follows:

A labour hire agency does not employ people to work for itself but to work for a client, it does not directly on a day to day basis supervise the tasks carried out by the employee and it is usually not in control of the workplace where the work is done. However, these circumstances do not obviate, or diminish, the obligation of the employer under s 15(1) of the OH&S Act to ‘‘ensure the health, safety and welfare at work of all the employer’s employees’’. Indeed, in our view, an employer who sends its employees into another workplace over which they exercise limited control is, for that reason, under a particular positive obligation to ensure that those premises, or the work done, do not present a threat to the health, safety or welfare of those employees. Certainly, there is no basis to consider that such an employer has a lesser liability or obligation under s 15(1).

...

A labour hire company cannot escape liability merely because the client to whom an employee is hired out is also under a duty to ensure that persons working at their workplace are not exposed to risks to their health and safety or because of some alleged implied obligation to inform the labour hire company of the work to be performed. In our view, a labour hire company is required by the OH&S Act to take positive steps to ensure that the premises to which its employees are sent to work do not present risks to health and safety. This obligation would, in appropriate circumstances, require it to ensure that its employees are not instructed to, and do not, carry out work in a manner which is unsafe.

32 These observations have been expressly approved and adopted in many subsequent authorities in this jurisdiction. One such authority is WorkCover Authority of New South Wales (Inspector Legge) v Coffey Engineering Pty Limited (No. 2) (2001) 110 IR 447 at 465.

33 We would add two observations by way of clarification. First, the expressions “to provide” and “to carry out” are not, on any reasonable construction, confined to an obligation that an employer must provide its own training, instruction or supervision or carry out its own assessment of the risks. There is accordingly no warrant to limit the nature of the statutory duty in the way contended for by the appellants. To do so would unnecessarily restrict the absolute obligation imposed on all employers under the occupational health and safety legislation. Secondly, it is apparent from the proceedings at first instance and her Honour’s judgment that the respondent’s case against the corporate appellant was clearly based on that appellant’s reliance on Hayman to provide the necessary training and the its subsequent obligation to make adequate enquiries and implement proper processes to ensure that the necessary training had been provided.

34 These grounds of appeal also fail.

Ground 5

35 The fifth ground relied upon by the appellants is contingent upon this Court’s non-acceptance of the construction of particulars (c), (d) and (e) advanced by the appellants namely, that the appellants cannot be held liable for the failures of the corporate appellant to directly provide its own training, instruction and supervision, and to carry out its own risk assessment.

36 The appellants in relation to this ground contend that her Honour fell into error when finding a causal nexus between the failures as particularised and the relevant risk to safety. The submissions, however, as we understand them, appear to rely upon a perceived error on her Honour’s part in finding a causal connection between the alleged failures and the accident. The appellant’s written submissions, for example, complain that, “it is impossible to identify conclusively how the accident occurred” and, “...there was a fault in the press. No-one was able to identify conclusively how the accident...”. Further, the appellants advance the proposition that what occurred on the day of the accident was, “...a catastrophic failure of the press, unconnected to any alleged failure particularised against the appellants”. These matters were not expanded upon by the appellants in oral submissions.

37 A submission on the lack of proof of causation in the context of an offence under s 15(1) of the Act which focusses on the cause of the accident is plainly erroneous. If further comment were needed in this regard we would rely on an observation to that effect by Walton J, Vice-President in WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings and Anor (2004) 135 IR 166 where it was said (at [133]):

[I]t is inappropriate to seek to artificially confine the risk to one narrowly defined by reference to an accident with the benefit of hindsight: it is the general class of risk which matters. The danger repeatedly cautioned against of focussing too much attention on an accident is twofold: such a misguided focus can obscure the relevant risk, and it can also misdirect an analysis of causation.

(See also South Sydney Junior Rugby League Club Limited v WorkCover Authority of New South Wales (Inspector Bestre) (2005) 142 IR 373 at [42]; State of New South Wales (NSW Police) v Inspector Covi [2005] NSWIRComm 303 at [26] - [27]).

38 This ground of appeal also fails.

Grounds 6, 7 and 8

39 The appellants next contend that her Honour erred in finding that particulars (c), (d) and (e) had been made out. The contention is advanced first on the basis that the training and instruction received by Mr Rowe and the undertaking of a risk assessment were, contrary to her Honour's finding, adequate, and, secondly, that her Honour's findings in relation to supervision relied on her earlier findings that training was inadequate and therefore compounded the error.

40 In support of this contention, the appellants' written submissions give a detailed account of the training received by Mr Rowe from employees of Hayman. We would comment that it is of course not the training given by Hayman but the adequacy of the training provided to Mr Rowe by the corporate appellant that was the issue before her Honour. Nor is it the task of this Court to embark on its own detailed examination of the facts to see if a different conclusion to that of her Honour's may be reached, as to the adequacy of training. An appeal under s 196 of the Industrial Relations Act 1996 and s 5AA of the Criminal Appeal Act 1912 is an appeal in the strict sense and requires an appellant to demonstrate some error in the judgment which might warrant intervention at appellate level.

41 In any event, an examination of her Honour's reasons reveals a detailed analysis of the evidence in relation to the three particulars. Her Honour's treatment of the evidence reveals that discrete consideration was given to each allegation of failure comprising particulars (c), (d) and (e). Her Honour's finding that the supervision afforded to Mr Rowe by the corporate appellant was inadequate relied on evidence which was independent of the evidence relied upon in relation to training. In relation to her Honour's findings on the alleged failure to carry out a risk assessment the appellants seek to revive an earlier submission made that her Honour failed to take the evidence of Mr Heine and Mr Ross into account concerning the time and cost to the corporate appellant involved in carrying out a risk assessment. The evidence given by Mr Heine, as we perceive it, did not deal with the time and cost involved in undertaking a risk assessment. Nor have the appellants directed our attention to the existence of any such evidence. The evidence given by Mr Heine dealt, in large part, with issues of maintenance and guarding, neither of which were issues which formed part of the pleadings. We have dealt with the evidence of Mr Ross, and the relevance of that evidence to the status of the corporate appellant as a labour hire company and its attendant obligation which was not, as we found, properly characterised on the evidence as an obligation to carry out its own risk assessment but rather to ensure by way of appropriate enquiry and proper processes that the host employer adequately performed such an assessment.

42 We perceive no error in the approach taken by her Honour or in her findings that the three particulars had been made out by the prosecutor beyond reasonable doubt. These grounds of appeal also fail.

Ground 9

43 Ground 9 of the appellant's grounds reminds the Court that the burden of proving the offence lies at all times with the prosecutor, and that the standard of proof is beyond reasonable doubt. In this regard the appellants contend that they were entitled to the benefit of the doubt. Specific mention in support of this ground is made of the requirement upon the prosecutor in relation to an offence under s 15(1) of the Act to prove to the requisite standard the causal nexus between a breach of the Act and the risk to safety occasioned to Mr Rowe.

44 This ground may be dealt with shortly. We consider that her Honour was well aware of the burden of proof and the standard of proof applicable to the prosecution under the Act, and we see no error in the application of those principles by her Honour to the evidence.

45 The appellants also contend, in relation to the requirement upon the prosecutor to prove causation, that issues of causation, in the context of the law of negligence, should also be considered as relevant to occupational health and safety prosecutions which require proof of causation as an element of the offence. We do not agree. The scope of the statutory duty under the occupational health and safety legislation is different from the duty of care in negligence cases. The former is an absolute duty to ensure the safety of all persons either at work or at an employer's place of work: see for example WorkCover Authority of New South Wales (Inspector Legge) v Coffey Engineering Pty Limited (No. 2) at [16]. The latter duty is a duty to take reasonable care to protect others against unreasonable risks: see, for example, Romeo v The Conservation Commission (Northern Territory) (1998) 192 CLR 431 at 478 per Kirby J. In addition, the requirement to prove causation in the context of a prosecution under the occupational health and safety legislation, in turn, requires proof of the existence of a nexus between a relevant failure on the part of an employer to ensure health, safety and welfare and resultant risk to safety. Causation in the context of negligence requires the nexus to be between the defendant's conduct and a resultant injury.

46 This ground of appeal also fails.

Grounds 10 to 17

47 The appellants also submit that the trial judge erred in her findings concerning the defences under s 53(a) and (b) of the Act. This submission is made in various ways in the grounds of appeal including assertions of error in failing to give sufficient weight to expert evidence, failing to give sufficient reasons for rejecting evidence and failing to apply and follow decisions of superior courts on the interpretation of the words "reasonably practicable" and "due to causes over which the person had no control and against the happening of which was impracticable for the person to make provision". In both written and oral submissions before the Court it became evident that the grounds of appeal were based on these three contentions:

(i) the failure to refer to the evidence of Mr Heine and of Mr Ross;

(ii) a finding made by her Honour that it is appropriate for the appellants to have relied on Hayman for the provision of training, instruction, supervision and assessment of the risks;

(iii) the failure to rely on the test of what is reasonable or reasonably practicable as laid down in negligence cases.

48 It is appropriate to consider the first two contentions together. In our view the submission that her Honour found it appropriate for the corporate appellant to rely on the training, supervision and assessment of risks provided by Hayman without more does not accurately state the finding. What her Honour said in that context was (at [109]):

Contrary to the position taken by the defendants as to the import of the pleadings to which I have earlier referred in paras [43] to [45] above, the provision of training, instruction and supervision as well as the carrying out of risk assessment by the defendants was at all times able to be done in more than one way. One such way, and indeed the way in which, in the circumstances of this case, one would have expected, would be that the defendants would have taken steps to ensure that the training, instruction, supervision and risk assessment undertaken by Hayman Industries in relation to the operation of the Press was not only adequate but was in accordance with the obligations that both parties had in relation to providing a workplace free of risks to safety. In other words, it was perfectly appropriate for the defendants at all times to do as it said it did. That is, to rely on Hayman Industries for the provision of instruction, training and supervision and ultimately for risk assessment.

49 Her Honour found that, if the evidence led against the corporate appellant had disclosed that Hayman's training for example had been adequate, which her Honour did not find, and, if the corporate appellant had taken the necessary steps to ensure that the training provided was, in fact, adequate, then it would have been appropriate to have relied on that training. It inevitably followed from this finding that the time, cost and trouble involved in providing training and assessing risks would not have been relevant to the issue of the provision of training by the host employer and the attendant obligation of a labour hire company to ensure that that training was adequate. It was not the prosecutor's case, as we apprehend it, that the corporate appellant breached the Act because it did not engage its own trainers, supervisors and assessors.

50 In relation to the evidence given by Mr Heine and Mr Ross we have earlier observed that that evidence had little if any relevance to the charge under s 15(1) as particularised and proved. There was no allegation of inadequate or faulty maintenance and the particular concerning inadequate guarding was not proved by the respondent beyond reasonable doubt. Both of these matters formed a significant part of Mr Heine's evidence. Mr Ross' evidence could only have some relevance, perhaps, if the respondent had run its case on the basis that the corporate appellant had a statutory obligation to provide its own trainers, supervisors and assessors.

51 As to the third contention we have earlier rejected the submission that the principles relevant to negligence cases have application to prosecutions under the occupational health and safety legislation in the context advanced by the appellants.

52 In our view, her Honour correctly applied the relevant principles on the application of the defences under s 53(a) and (b) of the Act. In considering those principles, one of a number of decisions in this jurisdiction upon which her Honour understandably placed reliance (given its approval by the Full Bench of the Court) was the decision of Walton J, Vice-President, in WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 100 IR 182. After examining the authorities on the meaning of "reasonably practicable" his Honour said (at 206, 207):

It is evident from these authorities that what is required by s 53(a) of the Act is a balancing of the nature, likelihood and gravity of the risk to safety occasioning the offence with the costs, difficulty and trouble necessary to avert the risk. At one end of the scale, it could not be reasonably practicable to take precautions against a danger which could not have been known to be in existence: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd (at 362). Similarly, if the happening of an event is not reasonably foreseeable then it will not generally be reasonably practicable to make provision against that event: see WorkCover Authority (NSW) (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381; WorkCover Authority (NSW) v Kellogg (Aust) Pty Ltd (at 259) and Austin Rover Ltd v Inspector of Factories (at 627) per Lord Goff and (at 635-636) per Lord Jauncey of Tullichettle.

At the other end of the scale, there will be cases, such as the present, in which known or obvious risks to safety exist. In these circumstances, the defendant will not have established a defence under s 53(a) of the Act where it was reasonably practicable to have complied with the Act by ensuring that persons were not exposed to those risks. This may be the case because no measures were reasonably available or because measures which were available were not reasonably practicable. As has been discussed, the assessment of the reasonable practicability of those steps requires a balancing of the quantum of the risk with the sacrifice (in money, time and trouble) in adopting the measures necessary to avert the risk. In my view, where there is a known risk which entails the potential for serious injury to persons in the workplace, the defendant will generally have to demonstrate that the costs, difficulty or trouble occasioned by the measures significantly outweigh the risk. This must be done by reference to the charge as brought by the prosecutor.

53 As the evidence before her Honour revealed, the risk to safety arising from the placing of hands, or any part of one's body, in the vicinity of the die area of the press was both known and obvious as suggested in the literature provided by the manufacturer. Consideration of whether it was reasonably practicable for the corporate appellant to have complied with the Act, for example, required an assessment of measures that were reasonably available or reasonably practicable, balanced against the quantum of the risk and the costs, time and trouble necessary to avert the risk. Her Honour found that the provision of training, supervision, and the means of conducting a risk assessment were able to be done in a number of ways including the taking of steps to ensure that Hayman, upon which the corporate appellant had placed reliance in this regard, had undertaken the necessary measures in relation to the operation of the press. Her Honour found that the corporate appellant had not taken the appropriate steps, and, in our view it was open to her Honour to have approached the evidence in this way.

54 Finally, in relation to these grounds we note that no submissions were made by the appellants in support of their assertion that her Honour fell into error in relation to her treatment of s 53(b) of the Act. In any event, we perceive no error in her Honour's approach to this second statutory defence under s 53.

55 These grounds of appeal also fail.

Grounds 18 to 22

56 The appellants also raise grounds of appeal in relation to the operation of s 50(1) of the Act. First, it is contended that s 50(1) is a separate offence and therefore that the second appellant must be afforded the defences available under s 53. Secondly, it is contended that her Honour erred in finding the second appellant guilty of an offence under s 15 of the Act and not s 50(1). Thirdly, it is contended by the second appellant that if s 50(1) is not a separate offence that he was not charged with an offence known to law.

57 The first and third contentions may be dealt with together. The third contention is dependant upon the proposition being established that s 50(1) does not create a separate offence. Two cases decided in this jurisdiction have dealt at length with these arguments: Morrison v Powercoal Pty Ltd and Another (2004) 137 IR 253, and, Inspector Jorgenson v Daoud (2005) 143 IR 170. According to the appellants these two cases have been wrongly decided. No reasons are advanced either in written or oral submissions as to why this must be so. In the circumstances, we consider there is no basis to reconsider the correctness of those judgments, and we will, therefore, apply the principles in both cases to the contentions put forward in relation to s 50(1) insofar as they may be applicable. We would add for completeness that, in any event, we agree with the conclusions of the Full Bench in those matters.

58 The first contention is that s 50(1) is a separate offence and therefore it follows that the second appellant may utilise the s 53 defences. An argument to similar effect was rejected in both Morrison v Powercoal at [163] and Inspector Jorgenson v Daoud at [25] to [28]. It may be useful to set out the relevant extract from the latter decision on the point insofar as it has application to the 1983 Act:

[25] We agree with counsel for the prosecution that s 26 does not, of itself, create an offence. Rather, the actual offence that the individual is taken to have committed is the same offence committed by the corporation (for example, an offence under s 8(1) of the Act). However, that does not suggest that s 26 is not necessary. As counsel for the prosecution correctly identifies, s 26 is the mechanism by which a director or person involved in the management of the corporation is taken to have committed the same offence that the corporation has committed.

[26] We consider that there are two provisions in the Act which support this interpretation. First, in s 26(1), each director and each person concerned in the management of the corporation is “taken to have contravened the same provision”. The “same provision” that is referred to is the provision contravened by the corporation and this arises from the opening words of the subsection, “[i]f a corporation contravenes ... any provision of this Act or the regulations ...”. This means that the offence that the individual is taken to have committed is a contravention of the provision that the corporation contravened rather than s 26 (assuming that the remaining conditions in s 26 are met). By virtue of s 26, the individual is taken to have committed an offence under the provision that the corporation has contravened even though under the terms of the other provision, they could not have been said to have contravened it (for example, because the provision, by its terms, creates an offence by the employer). We note finally that, during the hearing before the Full Bench, counsel for the defendant accepted this construction.

(The second provision upon which the Court placed reliance for the proposition that s 26 does not create an offence was s 12 of the 2000 Act. That section, unlike its predecessor provision, s 51A in the 1983 Act, is contained in a separate division to s 26. The analysis based as it was on the placement of s 12 within the same division as the successor sections to s 15 (ie s 8(1)) is not similarly available in relation to s 50(1)).

59 In our view, the proper approach to the construction of s 50(1) was set out in Morrison v Powercoal and in Inspector Jorgenson v Daoud. The latter decision dealt with s 26(1) of the Occupational Health and Safety Act 2000, the successor to s 50(1). As the above extract demonstrates, s 50(1) does not create a separate offence but merely provides a mechanism by which a director or person concerned in the management of the corporation found to have contravened s 15(1) may be found to have committed the same offence; that is, the offence under s 15(1).

60 Although we have found, following established authority, that s 50(1) does not create a separate offence we propose to deal briefly with the appellants' proposition that, because s 50(1) is a separate offence, the second appellant is entitled to the benefit of the defences under s 53. The appellants sought support for this proposition in the terms of s 50(2). That provision is expressed as follows:

A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or been convicted under that provision.

61 According to the appellants, s 50(2) contemplates two separate offences capable of being maintained against the corporation and against the director or person concerned in management. In aid of this construction of the subsection, the appellants point to a situation where a corporation is either not prosecuted or chooses for some reason in a prosecution not to avail itself of the s 53 defences. In each case, submit the appellants, the opportunity to argue the defences on behalf of the corporation would not be available to the individual unless he or she had such a right by operation of s 50 and s 53.

62 An argument in similar terms was raised and rejected by the Full Bench in Morrison v Powercoal. It should be rejected here for the same reasons. The relevant passages at [163] to [166] are extracted below:

[163] We are not persuaded the defences under s 53 are available to the personal respondent in addition to those defences under s 50(1)(b) or (c). Section 53 provides a defence to any proceedings against a person for an offence against the Act. However, a person facing prosecution by virtue of s 50 is not the subject of proceedings for an offence against the Act: under s 50, if a corporation has committed an offence against the Act, such a person shall be deemed to have contravened the same provision (subject to the particular requirements of s 50). The very fact of deeming the contravention assumes that the person has not, in his or her own right, actually committed an offence.

[164] The same conclusion follows from an examination of the terms of s 50. It is a precondition to the operation of s 50 that a corporation contravene a provision of the Act or regulations. This in turn assumes that there is no defence available to the corporation: if the corporation could rely upon a defence under s 53, there would not be a contravention. If the precondition (of contravention) is met, the director or "manager" is deemed to have contravened the same provision - that is to say, the individual is deemed to be in the same position as the corporation which has breached a provision of the Act and does not have the benefit of any defence under s 53. It would be incongruous for s 50 to require a contravention by a corporation, deem the same contravention, and then permit the examination, anew, of the availability of a s 53 defence when its unavailability has already been found in relation to the corporation and deemed in relation to the officer.

[165] Further, s 50 explicitly enumerates two exceptions to the operation of its deeming provision, which do not include defences under s 53, and the use of the word "unless", coupled with the absence of any words of generality used to denote a list which is not closed, makes it clear that these two exceptions are the only exceptions. We consider that if the legislature intended both sets of defences to be available to an individual defendant deemed to have contravened a provision of the Act the statute would have made this clear, particularly given the incongruity described above. It would have been a simple matter of drafting to add reference to s 53 but that has not been done.

[166] Finally, in broad terms, the overlap between the operation of s 50(1)(b) and (c) in relation to a director or "manager" and the operation of s 53 in relation to that director or "manager's" corporation suggests that the respondent's contention would result in unnecessary duplication. It seems to us that if a person was not in a position to influence the conduct of the corporation in relation to its contravention of a provision of the Act (thereby avoiding liability by virtue of s 50(1)(b)), or being in such a position, used all due diligence to prevent the contravention by the corporation (thereby activating s 50(1)(c)), then it would not have been reasonably practicable for the person to have complied with the relevant provision or, alternatively, the commission of the offence was due to causes over which the person would have had no control and against the happening of which it would have been impracticable for the person to make provision. For example, a director or "manager" with no real control over the corporation's conduct would not be in a position to institute a simple, practicable, change to a safety system well within the means of the corporation. Conversely, if the director or "manager" had the requisite control, then steps which would have been reasonably practicable for the corporation to take could have been taken by that individual.

63 The third contention relies on the Court's acceptance of the proposition that, if s 50(1) does not create an offence, then the second appellant has not been charged with an offence known to law. No contentions are advanced to support this proposition. In addition, an argument in relation to s 26(2) of the 2000 Act, to the same effect, was considered and rejected in Inspector Jorgenson v Daoud (at [30]):

Our conclusion as to the interpretation of s 26 is not affected by the reference in s 26(2) to "proceeded against and convicted under a provision pursuant to subsection (1)". We do not consider that this supports the proposition that no offence is created under the Act and consider that it is simply a way of expressing the statutory framework that the liability of the individual arises as a result of the terms of s 26 and that the defendant is thereby taken to have committed the same offence which the relevant corporation has committed. Subsection (2) is a facilitative provision so that it is not necessary to commence proceedings against the relevant corporation in order to commence proceedings against the individual.

64 It remains to deal with the second contention. It may be shortly rejected. Simply put, it is not an accurate statement of her Honour's finding in relation to the guilt of the second appellant. What her Honour said was (at [137]):

I make the same findings in relation to the personal defendant, Mr Thomas Edwin Smith. Mr Smith's liability arises from the breach of the corporate defendant under s15(1) of the Act and pursuant to the provisions of s50(1) of the Act as a director of the corporate defendant and a person concerned in the management of DSC.

65 This finding, in our view, was an accurate reflection of the relationship between the two sections. Accordingly her Honour did not misconstrue the provisions under which the second appellant had been charged, and therefore did not fall into error.

66 The appellants also contend in relation to s 50(1) that her Honour misdirected herself concerning the proper interpretation of the words "due diligence" in s 50(1). We do not agree. During submissions on the point her Honour had been referred to a Canadian authority, R v Bata Industries Ltd (No 2) (1992) 7 CELR (NS) 245. The case apparently propounded a number of tests that a defendant is required to meet in order to successfully make out the defence of due diligence. Her Honour, while noting that she was not bound by the decision found, in any event, that Mr Smith on the evidence failed many of the tests. We see no error in her Honour's approach.

67 These grounds of appeal also fail.

Grounds 23 and 24

68 In relation to the sentencing proceedings the appellants rely on two grounds of appeal, first, that the penalties imposed against both appellants were excessive, and, secondly, that her Honour was in error by failing to apply s 10 of the Crimes (Sentencing Procedure) Act 1999 to the second appellant.

69 Several factors were advanced by the appellants in the written submissions in support of the manifestly excessive ground. These may be described as:

(i) in assessing the reasonable foreseeability of the risk to safety, factors such as the inattention and carelessness of Mr Rowe, and the catastrophic failure of the press, should have been taken into account against the corporate appellant;

(ii) the penalty imposed upon the corporate appellant was excessive when compared to the culpability of the co-offender, Hayman;

(iii) her Honour did not have sufficient regard to several subjective features in her sentencing remarks.

Reasonable foreseeability of the risk to safety

70 In finding that there was a reasonably foreseeable risk to safety, her Honour relied on the evidence that the press was an inherently dangerous piece of machinery, as indicated, for example, in the literature provided by the manufacturer.

71 The evidence led before her Honour showed the following:

(a) the press was dangerous;

(b) the corporate appellant's policy was a paper system only, having never been implemented in practice;

(c) the training, instruction and supervision provided to Mr Rowe were inadequate;

(d) the corporate appellant did not assess the risks associated with the operation of the press.

72 Her Honour took this evidence into account when she concluded that the corporate appellant was directly responsible for the creation of the risk to Mr Rowe and that this risk was "significant, foreseeable and easily preventable".

73 We do not agree with the appellant's contention that Mr Rowe was inattentive and careless because he placed his hands inside the die area of the press. There was some evidence given during the contested proceedings that Mr Rowe was instructed to use snips or tongs to extract the pole caps. Her Honour found that the actual function of these devices was to trim the edges of pole caps, not to extract them from the die base. Her Honour was satisfied that part of Mr Rowe's training and instruction on the press involved him inserting his hand into the die area in order to remove the pole caps. These findings, based as they were on the evidence, do not assist the appellant's submission that Mr Rowe was in some way careless or inattentive in relation to his operation of the press. On the contrary, Mr Rowe performed the task as he had been instructed.

74 In relation to the submission concerning the "catastrophic failure" of the press, it is not clear to us the context in which her Honour should have taken that factor into account. Certainly the appellants do not develop the submission beyond its bald assertion. Insofar as it had relevance to the sentencing remarks, again, in our view, it does not assist the appellants. This is because it serves to highlight the seriousness of the risk and the likelihood of serious injuries in the event of an accident.

Respective culpabilities

75 Next the appellants contend that the penalty imposed on the corporate appellant was excessive when compared to the penalty imposed on the co-offender, Hayman. The maximum penalty faced by the corporate appellant was $550,000. Her Honour imposed a penalty of $40,000. Hayman had prior convictions, facing a penalty of $825,000, and pleaded guilty and was fined $55,000 which was discounted to $41,250. Her Honour examined in some detail the respective culpabilities of the two offenders and found them equal. Her Honour reached that view, on the basis that the nature and quality of the offences, with which they had been convicted, notwithstanding differences in the particularisation of those offences, lay in the failures of both to undertake a proper risk assessment and to provide adequate training, instruction and supervision. In our view, it was open to her Honour to find that the respective culpabilities of the two offenders were equal. No error therefore is disclosed in her Honour's approach. The penalty differential, which is not great, does not necessarily detract from the finding of equal culpability. The fine of $40,000 imposed on the corporate appellant in the present matter reflects, on our reading of her Honour's remarks, not only objective considerations, but subjective considerations. Nevertheless, different considerations, no doubt, would have applied to Hayman, not least of which would have been a discount of the fine for the plea of guilty: as to which, see WorkCover Authority of New South Wales (Inspector Mansell) v Hayman Industries Pty Ltd [2003] NSWIRComm 154.

76 We do not consider it appropriate or even possible to embark on an exercise to dissect precisely her Honour's reasons in an attempt to discover the rationale for the differential. The proper exercise of the sentencing discretion requires considerable experience and skill. The difficulties which may be encountered by sentencing judges within the sentencing process was recently the subject of judicial comment in Markarian v R (2005) 215 ALR 213 per McHugh J who said at [65]:

Unfortunately, discretionary sentencing is not capable of mathematical precision or, for that matter, approximation. At best, experienced judges will agree on a range of sentences that reasonably fit all the circumstances of the case. There is no magic number for any particular crime when a discretionary sentence has to be imposed.

Subjective features

77 The appellants also contend that her Honour did not have sufficient regard to various subjective feature, relevant to both appellants. We do not agree. Specific mention was made of the corporate appellant's safety record, the assistance provided to Mr Rowe in relation to the accident, and, contrition.

78 Her Honour was clearly unimpressed by the appellant's safety record. It relied on a paper system for safety measures. The evidence of the second appellant on this aspect revealed that following the accident the only review of the policy that was contemplated involved enlarging that policy but not implementing it. Her Honour considered in detail the assistance provided to Mr Rowe after his accident. She accepted it "as a positive factor on behalf of the defendants". In relation to contrition, it is difficult to see how her Honour should have taken it into account. The submissions of the appellants offer no enlightenment in this regard. No part of her Honour's judgment is identified and no evidence has been extracted which might give some weight to the submission. We do not consider that, in the circumstances, it was a relevant factor and we reject it.

Operation of s 10 to second appellant

79 The second appellant also submits that it is within the sentencing discretion of the Court to apply s 10 of the Crimes (Sentencing Procedure) Act to the second appellant given what is described as the existence of "extraordinary and highly exceptional circumstances". From what we can gather these circumstances consist of the following:

(a) the second appellant has been in business since 1965 and has a commendable record in relation to health and safety;

(b) there was animosity between the prosecutor and the second appellant which resulted in that appellant being charged in circumstances where the prosecutor had given assurances that there would be no charge;

(c) no individual employer of Hayman was charged;

(d) the charge under s 50(1) against the second appellant was not based on any additional culpability.

80 Her Honour considered whether the circumstances of the second appellant warranted the application of s 10 and found that they did not. She expressly directed her attention to the evidence of animosity between the prosecutor and the second appellant and viewed it as unacceptable. Nevertheless, she found that the decision to prosecute was justified based on several factors which included the second appellant's "hands on" involvement in the running of the corporate appellant, his responsibility for implementing the policy (which was not discharged), his capacity and obligation to direct the general manager as to his delegated responsibilities (and his failure to do that). Her Honour also expressly directed her attention to the submission that no director of Hayman had been charged and found that it was not a matter relevant to her consideration under s 10. The second appellant's record in health and safety matters was also addressed by her Honour. Evidence that the second appellant had engineered and adopted the corporate appellant's safety policy was qualified in her Honour's mind by evidence that the policy had not moved beyond the fact of its adoption to the next stage of implementation and that the second appellant was responsible for driving such a process forward.

81 We see no error in her Honour's consideration of the application of the section to the second appellant. As this Court held in WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Ltd (2004) 136 IR 449 held (at [57], [90]), the section will only be available in occupational health and safety offences in rare and exceptional circumstances. The present circumstances, in our view, were not capable of such a description and are far removed from it.

82 These grounds of appeal fail.

Ground 25

83 The final ground of appeal contends that her Honour erred in ordering the appellants to pay the costs of the proceedings "including a moiety", when only three of the six particulars alleged against the appellants had been proved by the respondent beyond reasonable doubt. According to the appellant, in the event that this Court dismisses the appeal against convictions then the appellants should only be required to pay the respondent's costs associated with three particularised failures proved against the appellants.

84 The submission that the appellants should be liable only for those costs associated with the three particulars proved was also made and rejected at first instance.

85 This issue has been dealt with recently in WorkCover Authority of New South Wales (Inspector Keenan) v Leighton Contractors Pty Ltd (2005) 147 IR 329, where Walton J, Vice-President, and Staff J said (at [12]):

Particulars provide an accused with fair notice of the case to be met, but do not, of themselves, constitute the essential elements of the offence charged: failure to establish a particular is not fatal to a prosecution. Nor should failure to establish a particular - in circumstances where the charge is ultimately proven - result in a more favourable result in relation to costs for the defendant.

86 The comment was made in a situation where the defendants at first instance had been acquitted of the majority of charges alleged against them, and, in relation to the remaining charges only some of the particulars of those charges had been made out by the prosecutor beyond reasonable doubt. By contrast here, the charges against both appellants were made out by the prosecutor. We see no reason to depart from the observations as to costs made in the above case. There is, therefore, no justification for departing from the orders made as to costs by her Honour at first instance.

87 Accordingly this ground of appeal fails.

Other matters

88 During submissions before us a matter was raised as to the status of her Honour's orders made at the end of the sentencing remarks as to whether those orders, particularly order (v) were in fact made. The Orders are in the following terms:

(i) Matter No IRC 3374 of 2002: offence arising under s 15(1) of the Act re Daly Smith Corporation:

The defendant is guilty of the offence charged.

A penalty of $40,000 is imposed.

(ii) Matter No IRC 3376 of 2002: offence arising under ss 15(1) and 50(1) of the Act re Thomas Edwin Curtis Smith:

The defendant is guilty of the offence charged.

A penalty of $5,000 is imposed.

(iii) I allocate a moiety to the prosecutor on the usual terms with respect to each penalty imposed.

(iv) I order the corporate defendant DSC to pay the costs of the prosecutor as agreed. Failing agreement within 28 days, the matter may be referred to the Registrar for assessment.

(v) If agreement is reached as to costs, the parties are to prepare and file draft orders to reflect the decisions I have made in order to record convictions and specific costs.

89 The Court was informed that the parties had not reached agreement on the issue of costs, or even on the assessment of costs. Accordingly the parties were informed that the Court's decision would be reserved until a note was received about whether formal orders had been made. The respondent subsequently sent additional submissions on the point entitled "Additional Submissions by Consent". We assume, by that description that the submissions represented the joint view of the parties.

90 The respondent's contention was that orders (i) to (iv) made by her Honour reflected final orders convicting and sentencing the appellants, and, order (v) was merely directed to ensuring that if and when there is agreement as to costs this will be formally recorded on the Court file. Support for this construction of the orders was sought to be found in Ove Arup Pty Ltd v WorkCover Authority of New South Wales (Inspector Mansell) (2005) 141 IR 78 at [24] to [31].

91 In our view, although order (v) is expressed somewhat ambiguously, we consider that, in finding the offences proven and imposing penalties, her Honour convicted the appellants and imposed fines on them. It follows from this that the appeal has been validly brought.

Orders

92 The Court makes the following orders:

1. The appeal is dismissed.

2. The corporate appellant is to pay the respondent's costs of the appeal as agreed or in default of agreement as assessed.

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LAST UPDATED: 07/04/2006