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[2011] NSWIRComm 102
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Masterton Homes Pty Limited v WorkCover Authority of New South Wales (Inspector Batty) [2011] NSWIRComm 102 (5 August 2011)
Last Updated: 11 August 2011
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Industrial Relations Commission
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Case Title:
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Masterton Homes Pty Limited v WorkCover Authority
of New South Wales (Inspector Batty) |
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Medium Neutral Citation:
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Hearing Date(s):
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23 March 2011, 24 March 2011, 25 March 2011 |
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Decision Date:
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Jurisdiction:
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Before:
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Boland J, President, Walton J, Vice-President, Backman
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Decision:
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(1) Leave to appeal, if required, is granted.
(2) With regard to the Decision of Chief Industrial Magistrate Hart of 22
June 2007, the appeal is dismissed. (3) Otherwise, the appeal is allowed and
the conviction and sentence of the appellant by Chief Industrial Magistrate Hart
of 29 October
2007, 28 May 2008 and 12 November 2008 are set aside. (4) The
matter is remitted to the Local Court to determine according to law. (5) The
respondent shall pay the appellant's costs of the proceedings below and the
appeal. |
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Catchwords:
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APPEAL - OCCUPATIONAL HEALTH AND SAFETY -
subcontractor injured while working at building site - appellant principal
contractor at
the site - challenge to jurisdiction - whether charge under s 8(2)
of the Occupational Health and Safety Act 2000 (the Act) pleaded an identifiable
risk to safety - whether the charge particularised with sufficient precision the
alleged omissions
or measures not taken - distinction between "means" and
"measures" considered - whether errors in the reasoning process of the Chief
Industrial Magistrate (the CIM) - whether the appellant was accorded procedural
fairness in the hearing below - whether the CIM's
failure to require the
respondent to provide particulars of the offence alleged in the charge
constituted an error - whether the
CIM erred in law in relation to the findings
of guilt - whether the CIM erred in his consideration of the statutory defence
under
s 28(a) of the Act - appeal upheld on basis of defect in first particular
of the charge and as a consequence of the CIM's failure to give
adequate reasons
which constituted a denial of procedural fairness - matter remitted to Local
Court to determine according to law
- costs |
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Legislation Cited:
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Cases Cited:
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Texts Cited:
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The Macquarie Dictionary (5th Edn) |
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Category:
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Parties:
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Masterton Homes Pty Limited (Appellant) WorkCover
Authority of New South Wales (Respondent) |
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Representation
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Mr D Campbell SC with Mr KG Bennett of counsel
(Appellant) Mr J Agius SC with Mr R Reitano of counsel (Respondent) |
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- Solicitors:
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Masterton Homes Pty Limited (Appellant) DLA
Piper Australia (Respondent) |
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File number(s):
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Decision Under Appeal
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- Court / Tribunal:
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- Before:
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Chief Industrial Magistrate Hart |
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- Date of Decision:
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Publication Restriction:
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Judgment OF
THE COURT
- This
is an application for leave to appeal and appeal from decisions and orders made
by Chief Industrial Magistrate Hart on 22 June
2007, 29 October 2007, 28 May
2008 and 12 November 2008.
- The
application was amended on 28 January 2011 to incorporate grounds of appeal
which rely on issues considered by the High Court
in Kirk v Industrial
Commission ; Kirk Group Holdings Pty Ltd v WorkCover Authority of New
South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531. The issues
primarily concern whether the Court Attendance Notice (CAN) filed against the
appellant in the proceedings at first instance
for an offence under s 8(2) of
the Occupational Health and Safety Act 2000 (OHS Act 2000) was "fatally
flawed" and did not invest the Court with jurisdiction because it failed to
identify the risk and the
measures relied upon by the respondent. Related
grounds relied upon by the appellant assert that it was not accorded procedural
fairness
in the hearing below and that the failure of the Chief Industrial
Magistrate (CIM) to require the respondent (the prosecutor below)
to provide
particulars of the offence alleged in the CAN constituted an error.
- Other
grounds set out in the application assert that the CIM erred in law in relation
to his findings of guilt and in relation to
whether his Honour failed to give
proper reasons for not acting on the expert evidence adduced by the appellant.
Background
- The
appellant builds residential homes in Sydney, Newcastle and the Illawarra
district. It was under contract to construct a two-storey
residential dwelling
on a site at Merewether. By late October 2004, the walls and framework of the
lower level of the building were
substantially complete and the wall frames from
the upper level were ready for installation and delivery. On 20 October 2004,
the
day of the offence, a steel beam spanned the front opening of the garage at
the site. It was some 5.5 metres in length and weighed
225.5 kilogrammes. It
rested on two brick piers about 2 metres in height, separated by a distance of
4.8 metres, measured from the
inside of each pier. The day before, the appellant
had entered into an oral contract with Structural Cranes Pty Ltd to unload the
wall frames for the upper level of the building by means of a Franna crane,
utilising a crane driver and a dogman to facilitate the
unloading from the back
of a truck, and place the frames on the upper level of the building ready for
installation.
- On
26 October 2004, the Franna crane and the truck carrying the timber frames
arrived at the site. Shortly thereafter, the crane driver,
David Fischer, and
the dogman, William Mitchell, decided that they could not safely "mobile", or
walk, the frames from the road onto
the site using the Franna crane because of
overhead powerlines which traversed the front of the site. An alternative plan
to unload
the frames from the truck using the crane on the roadside and
transporting them along Henry Street through site access gates and
depositing
them on the upper level of the building was deemed unsuitable because of
concerns about traffic issues held by the two
men. The procedure they settled
upon was that Steven Martin, the truck driver, would position his truck on the
footpath and use his
own crane (a Hiab) to unload the frames and "boom" them
close to the house in front of the garage where they could be lifted into
position by the Franna crane. This procedure, insofar as the two men were
concerned, successfully overcame the risk posed by the
powerlines.
- While
one panel of frames was being lifted into position it struck the steel beam
resting on the two brick piers, dislodging it and
causing it to fall. The beam
struck Mr Mitchell who was at the time assisting as the dogman and controlling
the load as it was being
lifted into position. Mr Mitchell was seriously
injured.
The Charge
- The
CAN set out a description of the offence as follows:
Breach of Section 8(2) of the Occupational Health and Safety Act 2000.
The defendant, being an employer failed to ensure that persons not being the
defendant's employees were not exposed to risks to
their health and safety
arising from the conduct of the defendant's undertaking while they were at the
defendant's place of work.
- Under
the heading "Short particulars" further details were provided:
On the said date at the said place the defendant, being an employer, failed
to ensure that persons other than its employees, namely
William Gordon Mitchell
(injured worker) (then aged 65 years) an employee of Structural Cranes Pty Ltd,
were not exposed to risks
to their health, safety and welfare arising from the
conduct of the defendant's undertaking, namely the construction of a two storey
residential home (undertaking) at the site (place of work of the defendant), in
that whilst the injured worker was standing in the
front of the garage area of
the home under construction, an unsecured steel beam was struck and dislodged
from its position above
the top of the garage area by a pack of timber wall
frames being raised to the upper level of the home by crane, striking the
injured
worker on the left shoulder and left ankle as it fell causing him to
sustain serious injuries, including two fractures to his shoulder
and a fracture
to his left ankle, which prevented him from performing his normal duties for a
period of more than seven days by reason
that:
1. The defendant failed to adequately secure the beam in position.
2. The defendant failed to ensure that persons did not access the area
beneath the unsecured beam.
3. The defendant failed to provide information or warning to the injured
worker that the beam was unsecured.
4. The defendant failed to provide the injured worker with a site induction.
- The
CAN also set out the time and date of the offence ("approximately 7am on 26
October 2004") and the place of the offence ("38 Henry
Street Merewether NSW
(site)").
Jurisdiction
- Summary
jurisdiction is conferred upon the Local Court to hear and determine proceedings
for an offence under the OHS Act 2000 by
reference to three statutory
provisions. Under s 172 of the Criminal Procedure Act 1986 (CPA)
proceedings for an offence in the Local Court are to be commenced by the issue
of a CAN, in accordance with Ch 4, Pt 2, Div 1 of the CPA. Section 105(1)(a) of
the OHS Act 2000 provides that proceedings for an offence under that Act are to
be dealt
with summarily before a Local Court constituted by a Magistrate sitting
alone. Under s 382(1) of the Industrial Relations Act 1996 (IRA)
jurisdiction conferred under the OHS Act 2000 may be exercised by the CIM or any
other Industrial Magistrate. Section 382(2)
provides that the CIM or other
Industrial Magistrate constitutes the Local Court when exercising that
jurisdiction.
- Section
175 of the CPA provides the mechanism or manner in which the jurisdiction is
invoked (see Knaggs v Director of Public Prosecutions (NSW) and Another
[2007] NSWCA 83; (2007) 170 A Crim R 366 at [28]- [31]). That section
provides:
Form of court attendance notice
(1) A court attendance notice must be in writing and be in the form
prescribed by the rules.
(2) The rules may prescribe one or more forms of court attendance notice.
(3) A court attendance notice must do the following:
(a) describe the offence,
(b) briefly state the particulars of the alleged offence,
(c) contain the name of the prosecutor,
(d) require the accused person to appear before the court at a specified
date, time and place, unless a warrant is issued for the
arrest of the person or
the person is refused bail,
(e) state, unless a warrant is issued for the arrest of the person or the
person is refused bail, that failure to appear may result
in the arrest of the
person or in the matter being dealt with in the absence of the person.
(4) The rules may prescribe additional matters to be included in court
attendance notices.
(5) A court attendance notice may describe an offence, act or other thing in
a way that is sufficient under this Act for the purposes
of an indictment or an
averment in an indictment.
- Clause
17(2) of the Local Courts (Criminal and Applications Procedure) Rule 2003
prescribes "additional matters" to be included in
the CAN in accordance with s
175(4). Clause 17(2) provides:
(2) For the purposes of section 175(4) of the Act, the court attendance
notice must include the following matters:
(a) the time and date of the alleged offence or, if the exact time and date
are not known, the period of time in which the offence
is alleged to have
occurred,
(b) the place where the offence is alleged to have occurred.
- The
CAN appears to comply with these requirements. Jurisdiction was therefore
validly conferred on the CIM to hear the proceedings
and the CIM's jurisdiction
was validly invoked by reason of the CAN's compliance with s 175.
- None
of the foregoing provisions deal with the common law requirement to plead in a
CAN the manner of a defendant's acts or omissions.
The manner of a defendant's
acts or omissions (commonly referred to as essential factual ingredients)
constitutes an essential ingredient
or element which must be specified or
identified in a charge: Kirk at [14], [15], [27], [37], [38], [74];
John Holland Pty Ltd v Industrial Court of New South Wales ; Parsons
Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales
[2010] NSWCA 338 at [32]- [44]; Lorenzo and Santos v Inspector Peter Hayes
[2011] NSWIRComm 54 at [32]; Western Freight Management Pty Ltd v
Inspector Patton [2011] NSWIRComm 68 at [8]; State of New South Wales
(Department of Education and Training and Department of Juvenile Justice) v
Cahill (No 2) [2011] NSWIRComm 33.
- In
Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240,
Basten JA (with whom Allsop P and Macfarlan JA agreed) said, citing John L
Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508 at
520-52, that a failure to state an essential factual ingredient of the offence
will be fatal to the validity of a charge, "unless
it is possible to cure the
omission or there is some overriding statutory protection" (at [42]).
- The
majority in Kirk found that the charges laid under s 15(1) and s 16(1) of
the Occupational Health and Safety Act 1983 (OHS Act 1983) failed to
identify any particular act or omission: see, for example, [14] and [28]. At
[28] the majority judgment
explained:
The statements of the offences as particularised do not identify what
measures the Kirk company could have taken but did not take.
They do not
identify an act or omission which constitutes a contravention of ss 15(1) and
16(1). The first particular of the s 15(1)
offence suggests that the Kirk
company had some systems relating to the operation of the ATV in place, but that
they were not sufficient.
It does not identify the deficiency in the system or
the measures which should have been taken to address it. The second particular
does not identify what information, instruction or training was necessary to be
given to Mr Palmer or the other employee of the Kirk
company. The particulars of
the s 16(1) offence say nothing about what should have been done to avoid
exposing the contractors to
risk to their health and safety from the use of the
ATV. Needless to say, the appellants could not have known what measures they
were required to prove were not reasonably practicable.
- In
Cahill , the Full Court expressed the view that the term "measure" seems
to have been regarded by the majority in Kirk as synonymous with the act
or omission giving rise to an offence: at [99].
- The
effect of the foregoing authorities in the context of occupational health and
safety offences under the OHS Act 2000, is that
the measure that could have been
taken in order to obviate the risk, but was not, constitutes an essential
factual ingredient which
must be pleaded in a charge. Moreover, the measure must
be identified in the charge with sufficient precision or specificity so that
the
defendant may raise, or propound, a defence. Conversely, the charge must
identify with sufficient precision the act or omission
relied upon as giving
rise to the offence: Cahill at [100].
Was the risk identified?
- In
Cahill , the Full Court held that the risk relied upon must be identified
in a charge brought under the OHS Act 2000. This does not mean
that in all cases
the risk must be expressly identified. As the Full Court in Cahill
observed, the majority in Kirk (at [14]) recognised that, "in many
instances the specification of the measure which should have been taken or
should be taken will
itself identify the risk which is being addressed". Of
significance was the Full Court's statement in Cahill of the limits or
extent to which the risk must be pleaded in the charge in order to show an
"identifiable risk" (at [47]-[49]):
Given that the prosecution is required to prove as an essential element of a
charge under s 8(1) that there was a risk to the health,
safety or welfare of a
defendant's employees, it follows that the charge should identify the risk.
However, as it was said in Kirk the obligation on the employer is not to
"establish that every possible risk was obviated", which is what an employer
might face if
the pleading is only in relation to a general class of risk, but
rather the pleading must show an "identifiable risk".
Provided the pleadings show such a risk, expressly or by necessary
implication, the charge will not be invalid or defective. We do
not see any
obligation on the prosecution to go beyond a short statement identifying the
risk. For example, in John Holland Pty Ltd v Industrial Court of New South
Wales ; Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of
New South Wales [2010] NSWCA 338 (" John Holland (CA") the Court of Appeal
was satisfied (see [52] per Spigelman CJ) with the description in the
Applications for
Order that "There was a risk of being struck by falling rock
and/or Tunnel Collapse" (we note that special leave to appeal to the
High Court
has been sought by John Holland). Any additional information could be provided
by way of a request seeking further particulars
or by the court ordering such
further particulars.
Although no objection was ever taken by the defendants in Kirk to the
pleaded risk and no further particulars were sought , the High Court held
that statements of offence did not plead an identifiable risk, but rather the
general risks and hazards in relation
to the operation of the ATV on the farm.
In contrast, in each of the Applications for Order in Matters 1390 and 1391,
there is an
identifiable risk to the employees' health, safety and welfare. In
our opinion, the appellant could not, in the present proceedings,
have been
under any misapprehension as to what was the specific risk in Matters 1390 and
1391. Even if it could be contended paragraph
(a), in terms, lacked specificity,
the charge has to be read as a whole. As Kirk stated, "in many instances
the specification of the measure which should have been or should be taken will
itself identify the risk
which is being addressed", thereby implying that even
if the risk is not expressly stated, it may be otherwise identified from what
appears in the charge. See John Holland (CA) at [56] per Spigelman CJ, Beazley
and Giles JJA agreeing at [123] and [124] respectively.
See also Rockdale
Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128;
(2007) 165 IR 7 at [125] and [130], Doja v R [2009] NSWCCA 303; (2009)
198 A Crim R 349 at [27]- [36] and Inspector Hamilton v John Holland Pty Ltd
[2010] NSWIRComm 72; (2010) 194 IR 189 at [47], [71] and [75] as to implying
elements of an offence from the Application for Order.
- The
appellant, in reliance upon the findings of the majority in Kirk at
[74]-[75] contended that the Local Court lacked jurisdiction to make any orders
as to the conviction and sentence founded on the
CAN because it had no power to
do so given that no relevant risk was properly identified, or was not identified
in the CAN with sufficient
specificity.
- According
to the respondent, the risk was implicit in the CAN and the appellant can have
been in no doubt about what was the risk
alleged, namely, the risk of the steel
beam falling from height and striking "someone". The respondent also relied on
the prosecution's
opening as identifying the risk in clear terms.
- There
is no explicit or express statement identifying the relevant risk in the CAN. In
our view, however, it is identified implicitly
with sufficient precision so that
the appellant can have been in no doubt about what was being alleged by the
respondent. According
to the CAN, Mr Mitchell was exposed to a risk to his
safety, "in that whilst (he) was standing in the front of the garage area of
the
home under construction an unsecured steel beam was struck and dislodged from
its position above the top of the garage area by
a panel of timber frames ...
striking (him) ...". The details of the accident set out in the CAN, which took
place on the day of
the offence, identify the risk to which Mr Mitchell
(nominated in the CAN as the "injured worker") was allegedly exposed. The
accident
is described in the CAN with sufficient clarity. It also directly
concerns the person nominated in the charge as the person exposed
to a risk.
- If
we had found otherwise we would emphasise that identification for the first time
in the prosecution's opening address of the risk
relied upon by the prosecutor,
not otherwise sufficiently identified in the charge, infringes the requirement
that essential elements
must be identified in the charge. This requirement was
recently explained in Lorenzo and Santos v Inspector Peter Hayes [2011]
NSWIRComm 54 where a Full Court said (at [53]):
These observations apply with equal force to particulars which may be
provided by the prosecution in its opening address. Identifying
the essential
factual ingredients of a charge for the first time in an opening infringes the
requirement that essential elements
are to be identified in the pleadings (that
is, in the charge: Kirk at [14]). Non-essential particulars may be provided
where they
have not earlier been sought. That is because non-essential
particulars are not required to be pleaded in a charge. They may be supplied
outside of the pleadings in order to clarify matters in the pleadings so that,
for example, a defendant can propound a defence: Lodhi v The Queen [2006] NSWCCA 121; (2006)
199 FLR 303 at [104]. Where particulars, or inadequate particulars, of this
latter type have not been supplied, the Court has an inherent jurisdiction
to
order them: see for example Saffron v The Queen (1988) 17 NSWLR 395 at
447; 36 A Crim R 262 at 313 per Hunt AJA.
Were the measures identified?
- The
CAN alleged four acts or omissions (measures) said to constitute the manner in
which, or how, the offence was allegedly committed.
- The
appellant's primary focus on appeal was the first alleged measure (to which we
will refer for convenience as "Particular 1").
Particular 1 alleged that the
appellant failed to ensure Mr Mitchell was not exposed to a risk to his safety,
"by reason that ...
(the appellant) failed to adequately secure the beam".
- The
Local Court was said to lack jurisdiction to make the orders convicting and
sentencing the appellant because no particular act
or omission, or sets of acts
or omissions, were identified in the CAN, or in the proceedings at any time.
According to the appellant,
the allegation in Particular 1 is clearly
insufficient because the measure that needs to be taken (to adequately secure
the beam)
is not stipulated in the charge, and stipulation of the measure was
required so that the appellant could consider whether and if
so what defences
might be available under s 28 of the OHS Act 2000. The appellant placed reliance
for this proposition on a passage
in Kirk where the majority commented on
the necessity to identify the measure in order that the defences under the OHS
Act 1983 can be properly
addressed (at [16]):
... A feature of the legislation here in question is that where an employer
is charged with an act or omission which is a contravention
of s 15 or s 16, it
will be necessary for the employer to establish one of the defences available
under s 53 in order to avoid conviction.
Where reliance is placed by the
employer on s 53(a), it would be necessary for the employer to satisfy the
Industrial Court, to the
civil standard of proof, that it was not reasonably
practicable to take the measure in question. Such a defence can only address
particular measures identified as necessary to have been taken in the statement
of offence.
- The
respondent, in response to the submissions on jurisdiction, contended that
Kirk is not authority for the proposition that a charge which does not
specify a risk or a measure fails to ground jurisdiction in the
Court. Secondly,
the respondent, in answer to the appellant's submission that the measure was not
stipulated in Particular 1, said
it was sufficient for the prosecutor to allege
the measure, that is, a failure to secure the beam, without alleging the way in
which
the beam was to be secured. This was so for two reasons. First, while the
majority in Kirk referred to a necessity to specify a measure it did not
require the specification of the means by which the measure was to be employed.
Further, the measure is a requirement "to adequately secure the beam in
position" and no complaint is made by the appellant about
the use of the word
"adequately", nor could it be. Both the Court of Appeal and the Full Court of
this Court held that the use of
the word "adequately" does not of itself render
a particular inadequate: see The GEO Group Australia Pty Ltd (t/as Junee
Correctional Centre) v WorkCover Authority of New South Wales [2011]
NSWIRComm 14; John Holland Pty Ltd (Court of Appeal)
- Secondly,
the requirement, or measure, "to secure" carries an absolute value. The word
"secure" is defined in the Macquarie Dictionary (5 th Ed) (at p1491) as:
Free from or not exposed to danger; safe. Not liable to fall, yield, become
displaced, etc, as a support or a fastening.
- The
definition of the verb "to secure" includes the following:
To make secure from danger or harm; make safe; to make firm or fast.
- The
respondent characterised the prosecution case as one where the measure which the
appellant failed to adopt was the securing of
the beam. The method of securing
the beam it was said was not material. It included the positioning of the beam
on the ground so
that it could not fall. It also included the fixing of the beam
in position on top of the columns where it rested unsecured.
- In
the alternative, the respondent submitted that the prosecutor identified the two
methods nominated above in the prosecution's opening
by which the beam might
have been secured, thereby identifying two measures which addressed the risk.
- In
Kirk (at [74]) the majority found that the Court at first instance had
fallen into jurisdictional error because it had misconstrued s 15
of the OHS Act
1983 which led it to make orders convicting and sentencing Mr Kirk and his
company, "where it had no power to do so".
The majority continued at [74] and
[75]:
The first of the errors in question in this case - the errors of construction
of s 15 of the OH&S Act - can be identified as a
jurisdictional error of the
third kind identified in Craig . That is, it can be identified as the
Industrial Court misapprehending the limits of its functions and powers.
Misconstruction of
s 15 of the OH&S Act led the Industrial Court to make
orders convicting and sentencing Mr Kirk and the Kirk company where it
had no
power to do so. It had no power to do that because no particular act or
omission, or set of acts or omissions, was identified
at any point in the
proceedings, up to and including the passing of sentence, as constituting the
offences of which Mr Kirk and the Kirk
company were convicted and for which they
were sentenced. And the failure to identify the particular act or omission, or
set of acts
or omissions, alleged to constitute the contravening conduct
followed from the misconstruction of s 15. By misconstruing s 15 of
the OH&S
Act, the Industrial Court convicted Mr Kirk and the Kirk company of offences
when what was alleged and what was established
did not identify offending
conduct.
The explanation just offered also demonstrates that the error made by the
Industrial Court was not only an error about the limits
of its functions or
powers. It was an error which led to it making orders convicting Mr Kirk and the
Kirk company where it had no
power to do so. The Industrial Court had no power
to do that because an offence against the OH&S Act had not been proved. It
follows that the Industrial Court made orders beyond its powers to make.
- There
are indications in the majority judgment that the defective charges would have
been curable had appropriate particulars been
provided at some stage during the
course of the proceedings, but before those proceedings were finally determined.
In the majority
judgment at [30], for example, appears the following passage:
However, it may be said that the matter should not have proceeded without
further particularisation of the acts and omissions said
to found the charges.
Without that particularisation, the Industrial Court would be placed in the
position to which Evatt J referred
in Johnson v Miller where it would act
as "an administrative commission of inquiry" rather than undertake a judicial
function.
- To
similar effect is the finding in Kirk at [74], cited above, that the
Court at first instance had no power to convict and sentence Mr Kirk or his
company, "because no particular
act or omission ... was identified at any point
in the proceedings, up to and including the passing of sentence": (see also
John Holland (Court of Appeal) per Spigelman CJ at [41]-[45]).
- In
further considering whether the measure relied upon was sufficiently identified
in Particular 1, it is necessary to resort to the
procedural background in this
matter.
- The
CAN was served by post on the appellant on 13 September 2006. On 28 February
2007, the appellant wrote to the respondent seeking
the following particulars:
1. Please identify the facts and matters on which it is relied to assert that
the defendant failed to adequately secure the beam in
position.
2. Please identify the manner by which it is alleged the beam ought to have
been adequately secured.
3. Please identify the facts and matters by which it is asserted that the
failure to provide the injured worker with a site induction
gave rise to a risk
to his health, safety and welfare.
- On
16 March 2007, the respondent sent the following written reply:
We refer to your letter of 28 February 2007 requesting further and better
particulars, and are instructed to respond as follows:
1. Please identify the facts and matters on which it is relied to assert that
the defendant failed to adequately secure the beam in
position.
1.1 This is not a proper request for particulars but a request for evidence.
The Prosecutor has served a brief of the evidence upon
which he proposes to rely
in support of the charge that has been laid against the Defendant.
2. This is not a proper request for particulars. The prosecution is not
required to state what action the Defendant should have taken
to comply with
obligations under the Occupational Health and Safety Act 2000 - see WorkCover
Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials
Limited [1999] 91 IR 199.
3. Please identify the facts and matters by which it is asserted that the
failure to provide the injured worker with a site induction
gave rise to a risk
to his health, safety and welfare.
3.1 This is not a proper request for particulars as it does not pertain to
the essential elements of the offence with which the Defendant
is charged.
3.2 It is sufficient for the commission of an offence under section 8(2) for
the Prosecutor to demonstrate the risk to health and safety by reliance upon the
omission by the Defendant.
3.3 It is noted that clause 213(1) of Occupational Health and Safety
Regulation 2001 provides that a principal contractor for a construction project
must not direct or allow another person to carry out construction
work on the
construction project unless the principal contractor is satisfied that the
person has undergone OHS induction training.
Clause 216 defines "OHS induction
training" to include site specific induction training.
- The
appellant attempted a second time by letter of 5 April 2007 to obtain
particulars:
We refer to your correspondence dated 16 March 2007 and observe that your
instructed response provided little assistance to the defendant
in understanding
the nature and complexity of the charges brought against it.
Insofar as your responses (adopting your numbering) are concerned, we make
the following observations and requests:
1. A request to identify the "facts and matters" relied on is not a request
for evidence, but a request that you inform us of the
material facts on which
the prosecution will rely. On obtaining this material, the defendant ought be
able to ascertain the case
it is called upon to meet - see discussion by his
Honour Justice Joske in Trade Practices Commission v Total Australia Limited
24 FLR 413.
It is no answer to a request to provide the material facts that a brief of
evidence has been served. It is not for the defendant to
be obliged to search
through the evidence for the purpose of trying to second guess what the
prosecution will be asserting constitutes
the material facts.
We repeat the request previously made and set out by you in point 1 of your
correspondence.
Further, we note that the short particulars at "1." uses the adverb
"adequately" to qualify the alleged failure to secure.
Please explain what you mean by the words "to adequately secure"?
2. Insofar as your reliance on Fernz' case is concerned, we are of the
view that that decision must now be read in the context of the Court of Appeal's
decision in Kirk Group Holdings Pty Limited v. WorkCover Authority of NSW
2006 NSW CA 172, paras 101 and 102.
Accordingly, would you identify with precision the manner by which it is
alleged the beam ought to have been adequately secured.
- The
respondent responded to this second request by letter of 18 May 2007 as follows:
We do not agree with your observations in your letter. We certainly do not
agree that the Judgment in Kirk Group Holdings Pty Limited v WorkCover
Authority [2006] NSWCA 172 in any is relevant to the purported particulars
you have sought. Despite our view and in order to avoid any further arguments
over
the issue we provide you with the following information in answer to the
request made in your letter of 28 February 2007.
1. The facts and matters relied upon to assert that the defendant failed to
adequately secure the beam in position are those that
are generally set out in
the Statement of Facts that is found at Tab 2 of the brief. In particular, the
prosecution relies upon the
facts set out in paragraphs 16 and 19.
2. The manner in which the beam ought to have been adequately secured is by
any means that would have ensured that it could not or
did not fall from the
position where it was to the ground so as to put at risk the health and safety
of anyone who might be standing
in its line of fall.
3. We note in your letter of 5 April 2007 you have not complained about the
answer in our letter of 16 March 2007.
- In
Trade Practices Commission v Total Australia Limited (1976) 24 FLR 413,
which was the first authority to which the respondent's attention was directed
in the appellant's second letter, civil proceedings
had been commenced against
the defendant claiming a breach of s 47 of the Trade Practices Act 1974
(Cth). The section prohibited exclusive dealing but s 47(5) limited the
prohibition where conduct was, "likely to have the effect of substantially
lessening competition in a market for goods
and services". The defendant sought
further particulars of the allegation in the plaintiff's statement of claim
concerning the likely
effect of the conduct in substantially lessening
competition in the market. Joske J rejected the defendant's application for
particulars
on the basis that it was seeking to ascertain the evidence upon
which the plaintiff intended to rely in order to prove its case,
but in doing
so, his Honour also adverted to matters which would constitute a proper request
for particulars (at p 417):
... While the defendant is entitled to know the case it is called upon to
meet, it is not entitled to be told the evidence that will
be called to prove
the case. A defendant is entitled to ask for the material facts upon which the
plaintiff will rely and he may
make his request for the facts and matters relied
on, which is taken to mean the same thing. ...
- The
respondent was therefore on notice that the appellant's request to identify the
"facts and matters" on which the prosecutor proposed
to rely was a legitimate
request for particulars which required an answer.
- The
second authority to which the respondent's attention was directed by the
appellant in its letter of 5 April 2007 was Kirk Group Holdings Pty Limited v
WorkCover Authority of New South Wales [2006] NSWCA 172; (2006) 66 NSWLR
151. In the judgment, Basten JA (with whom Spigelman CJ and Beazley JA agreed)
emphasised the importance of identifying in a charge the
particular "actions"
which should have been taken, but were not, and the importance of identifying
with precision the relevant omissions
in the context of an offence of absolute
liability where a defendant is dependant upon establishing a defence. At
[101]-[102] (the
two paragraphs to which the respondent's attention had been
specifically directed) Basten JA said:
To speak of a failure to provide "systems of work" that were safe and without
risks to health is of no assistance in identifying particular
actions which
should have been taken and were not. The same may be said of the failure to
provide "such information, instruction
and training as may be necessary" to
ensure health and safety at work. The failure to identify the relevant omissions
with precision
is likely to be of particular importance in circumstances where,
in accordance with the jurisprudence of the Industrial Court, the
offences are
"absolute" and the opportunity for a defendant to escape conviction will be
largely dependent upon establishing a defence
under s 53 of the OH&S Act
1983, which, at least in part, required the identification of steps which might
have been taken in
order to comply with the absolute obligation, but are said
not to be reasonably practicable.
The lack of content in the particulars is significant in another respect. If
the obligation to obviate risks to health and safety
is absolute, it may be of
assistance to the Court to know how the steps, the omission of which is relied
on by the prosecutor, were
said to have been capable of obviating the relevant
risk. Furthermore, to be able to defend itself, the employer might wish to know
what was the precise "risk" which was said to exist in relation to the use and
operation of the ATV.
- Contrary
to the respondent's response of 16 March 2007 and 18 May 2007, the Court of
Appeal judgment in Kirk was undoubtedly of relevance to the appellant's
application for further particulars, Basten JA having sought to emphasise the
importance,
in particular, of identifying "actions" which should have been taken
but were not.
- The
respondent, in its letter of 18 May 2007, directed the appellant to two
paragraphs in a Statement of Facts which it was said,
"generally set out"
information about the "facts and matters" upon which the respondent intended to
rely to prove the allegation
in the CAN that the appellant had failed to,
"adequately secure the beam in position".
- A
Statement of Facts was tendered by the appellant during interlocutory
proceedings before the CIM in which the appellant sought by
way of formal
application to obtain the particulars it had requested unsuccessfully from the
respondent. This document did not find
its way into the Appeal papers. It was,
however, referred to on a number of occasions during the substantive proceedings
below. After
the prosecution's opening, counsel for the appellant referred to
paragraph 16 of the document purporting to read at least part of
its contents
onto the record:
At para 16 this is the proposition. As one of the packs of frames was being
lifted into a position on the upper level it struck the
beam, dislodging it and
causing it to fall to the ground. That's the facts and matters that they're
relying on. There is a proposition
as a result there were injuries suffered.
There's the observation that it was lifted back into place. Then there's another
proposition
which was irrelevant. They're the facts and matters. And then in
that context there is a suggestion of the manner, and the manner
is that it not
fall. When one looks at and considers the facts and matters that they have
relied on and consider the manner in which
it would not fall.
- The
letter of 18 May 2007 also informed the appellant that, "the manner in which the
beam ought to have been secured" was "by any
means that would have ensured that
it could not or did not fall from the position where it was to the ground". This
response suggested
that the focus of the allegation was on a failure to secure
the beam so that it did not fall from its position on the brick piers.
When
considered with Particular 1, the allegation would, on any reasonable analysis,
be understood to be confined to a measure of
securing the beam on the brick
piers, that is, "in position". As the procedural background will shortly
establish, the prosecution
was in fact relying on two measures to make out
Particular 1.
- The
responses were unsatisfactory especially when regard is had to the provision
under which the appellant had been charged. Section
8(2) has long been held to
impose general duties or obligations. The offence is one of absolute liability,
subject to any relevant
defences. Once the prosecution proves its case beyond
reasonable doubt, the onus falls on a defendant under s 28(a), for example,
to
prove on the balance of probabilities that it was not reasonably practicable to
comply with the provision.
- In
Shannon v Comalco Aluminium Ltd (1986) 19 IR 358, the New South Wales
Commission in Court Session, as it was then known, described the nature of the
duty under s 15(1) of the OHS
Act 1983 (substantially reproduced in s 8(1) of
the OHS Act 2000). At 359 of the judgment, the Full Bench (Fisher P, Cahill and
Glynn
JJ) said:
Section 15(1) is a general provision establishing a far reaching obligation
upon the employer and imposing a duty in absolute terms.
Section 15(2) spells
out with particularity the heads or particulars of that absolute duty without in
any way cutting down its rigour.
- This
statement has been accepted in subsequent judgments of this Court as accurately
reflecting the function and operation of the
provision. The obligation is
expressed in substantially similar terms under the relevant provisions of the
OHS Act 2000, for example,
s 8(1) and s 8(2). The High Court in Kirk
recognised that the obligations or duties imposed upon employers under s 15
or s 16 of the OHS Act 1983 were generally stated and
absolute, delimited (only)
by the terms of the defences under s 53 (now s 28 of the OHS Act 2000)): at
[10], [12], [18].
- In
Newcastle Wallsend Coal Company Pty Ltd v WorkCover Authority (NSW)
(Inspector McMartin) [2006] NSWIRComm 339; (2007) 159 IR 121 at [214], the
majority, Boland J, President and Walton J, Vice-President collected authorities
which established that offences under s 15
and s 16 of the OHS Act 1983 were
offences of absolute liability:
Although the issue was not raised by either party in these proceedings, it is
pertinent at this juncture to comment briefly upon one
other matter of
principle: the absolute nature of liability under ss 15 and 16, referred to in
remarks by Basten JA in Kirk Group Holdings Pty Ltd v WorkCover Authority
(NSW) [2006] NSWCA 172; (2006) 154 IR 310 at [146]. While there has been, at times, variance
in the language used, the settled authority of this court plainly establishes
that liability
is absolute as the Full Bench observed recently in Kirk Group
Holdings Pty Ltd v WorkCover Authority (NSW) (Inspector Childs) [2006]
NSWIRComm 355 at [49]. (See also Carrington Slipways Pty Ltd v Callaghan
(1985) 11 IR 467; Drake Personnel Ltd (t/as Drake Industrial) v WorkCover
Authority (NSW) (1999) 90 IR 432 at 449; WorkCover Authority (NSW) v
Coffey Engineering Pty Ltd (No 2) [2001] NSWIRComm 319; (2001) 110 IR 447 at [16]- [17]; Ridge
Consolidated Pty Ltd v WorkCover Authority (NSW) [2002] NSWIRComm 108; (2002) 115 IR 78 at [32];
WorkCover Authority (NSW) v Weathertex Pty Ltd [2003] NSWIRComm 273; (2003) 127 IR 60 at [58];
Morrison v Powercoal Pty Ltd [2004] NSWIRComm 297; (2004) 137 IR 253 at [97]; WorkCover
Authority (NSW) (Inspector Franke) v Amer Kanawaty [2005] NSWIRComm 361 at
[45]; Daly Smith Corporation (Aust) Pty Ltd v WorkCover Authority (NSW)
[2006] NSWIRComm 111; (2006) 151 IR 173 at [33]; WorkCover Authority (NSW) (Inspector Schultz)
v Hoffman's Kundabung Sawmilling Pty Ltd (2006) 155 IR 416 at [54]; and
WorkCover Authority (NSW) v Rockdale Beef Pty Ltd (2006) 155 IR 366 at
[148]). This stems from the unconditional, objective nature of the liability
(see Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 470; State
Rail Authority (NSW) v Dawson (1990) 37 IR 110 at 120-121; Kirkby v A
& MI Hanson Pty Ltd (1994) 55 IR 40 at 50; ABB Power Transmission Pty
Ltd v WorkCover Authority (NSW) (Inspector Wilson) (unreported, Industrial
Relations Commission (FC), NSW, Matter No CT 1215 of 1996, 2 May 1997); [1997]
NSWIRComm 60; Ferguson v Nelmac Pty Ltd (1999) 92 IR 188; WorkCover
Authority (NSW) v Police (NSW) (No 2) (2001) 104 IR 268 at [20]; and
McMartin v Broken Hill Proprietary Co Ltd (1988) 100 IR 241); the
exclusive nature of the defences available under s 53 (allowing no
countervailing defence of honest and reasonable mistake of
fact - see, for
example Kellogg (No 1) at 259 and Inspector Wolf v Rockdale Beef Pty
Ltd at [147]); and the important social purposes of the Occupational
Health and Safety Act and its successor, discussed by the Full Bench in
WorkCover Authority (NSW) v T & Y Pty Ltd (2005) 146 IR 458 at [7];
Beacham v Interface Manufacturing Pty Ltd (2005) 141 IR 416 at [27];
WorkCover Authority (NSW) v Flexible Packaging (Australia) Pty Ltd (2005)
144 IR 385 at [2]; and T and M Industries (Aust) Pty Ltd v WorkCover
Authority (NSW) [2006] NSWIRComm 25; (2006) 151 IR 130 at [77]). (For a detailed discussion of
the distinction between absolute and strict liability offences, see, for
example, R v Wampfler (1987) 11 NSWLR 541 at 546; Griffn v Marsh
(1994) 34 NSWLR 104 at 114-117; He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR
523 at 529-530; Binskin v Watson (1990) 48 A Crim R 33; Von Lieven v
Stewart (1990) 21 159 IR 121] NEWCASTLE WALLSEND COAL v WORKCOVER (Walton J,
VP, 205 Boland J) 214 NS WLR 52; Principles of Criminal Law , S Bronitt
and B McSherry, 2005, Lawbook Co at 189-190; and Criminal Defences , D
O'Connor and PA Fairall, 3rd ed, Butterworths, 31-71).
- Recent
cases which may be added to this line of authorities include: Rail
Infrastructure Corporation v Page [2008] NSWIRComm 169; (2008) 179 IR 398 at
[101]; Cahill v State of New South Wales (Department of Community Services)
(No 3) [2008] NSWIRComm 123; (2008) 182 IR 124 at [291].
- In
Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467, Watson J
referred to the inter-relationship between s 15(1) as an offence of absolute
liability and s 53 of the OHS Act 1983 (at 470):
In their context and purpose, there would appear to be no reason to make any
implication that the words "to ensure" are to be construed
in any way other than
their ordinary meaning of guaranteeing, securing or making certain.
That context includes s 53. That section does not simply reverse any onus
which might otherwise fall on the prosecution under s 15(1).
Rather, s 53
affirmatively expresses and delimits defences not otherwise open under s 15(1).
It makes clear at the same time that
those defences are to be proved by the
person against whom the proceedings are instituted.
- Carrington
Slipways was the first case decided under the OHS Act 1983. The proposition
that the only defences to an offence under s 15(1) were the two
statutory
defences set out under s 53 found its first expression in that case.
- When
the general obligation which is imposed on an employer is considered with the
requirement upon a defendant to establish, on the
balance of probabilities,
either one of two statutory defences under s 28, the importance of providing a
clear and precise statement
of the measures by which the prosecutor alleges a
relevant failure has occurred, becomes obvious. Without a clear and precise
statement
of the measures not taken a defendant would face, "the additional
burden of anticipating and negating the practicability of every
possible means
of avoiding or mitigating a risk or accident ...": Chugg v Pacific Dunlop Pty
Ltd [1990] HCA 41; (1990) 170 CLR 249 at 263. (The observations made in
Chugg v Pacific Dunlop concerned whether s 21 of the Occupational
Health and Safety Act 1985 (Vic) placed the onus of proof, in relation to
practicability, on an employer where the provision provided that an employer
provide
a safe working environment, "so far as is practicable".) To similar
effect, the majority in Kirk , after referring to the onus on a defendant
to satisfy the court on the balance of probabilities that it was not reasonably
practicable
to take the measure in question, said, "[s]uch a defence can only
address particular measures identified as necessary to have been
in the
Statement of Offence" (at [16]).
- Having
failed in its initial attempts to extract the particulars from the respondent by
informal process, the appellant applied formally
by way of a Notice of Motion to
the Local Court to obtain the particulars asked for in the letters dated 28
February and 5 April
2007. The application came on for hearing before the CIM.
During oral submissions before the CIM the prosecution contended that the
particulars supplied to the defendant were sufficient and in conformity with the
remarks made by Basten JA in Kirk (Court of Appeal) at [101]. Particular
1, it was said, defined the measure not taken, namely, "you should have secured
the beam in
place but did not". The prosecution's intended case, it was
explained, was:
The Prosecutor's case, and in respect of the beam, and it has not been cute
about this in anyway whatsoever, you failed to secure
it or you failed to
adequately secure it and adequately must be understood as is made clearly in the
particulars to mean, to secure
it in a way so that it would (sic) fall and
perhaps even more particularly, fall on someone underneath it.
- The
appellant appeared to be reasonably content with that formulation contending,
during and at the end of its submissions:
... Firstly your Honour, the Defendant is relieved to a certain extent now
that it has been explained by the Prosecution what was
meant in their answer to
the first request for particulars.
They are not reserving some right to go beyond the area of identified matters
but simply to call evidence with respect to those identified
matters to
establish them.
...
Your Honour, that was not clear in the answer that was provided to us and it
has only been made clear this morning.
So, to that extent, the Defendant is not required, I think in the course of
these proceedings to press for further answer to Particular
one now that has
been appropriately explained by the Prosecution.
I might add, your Honour, if that would have been the terminology adopted by
my learned friend today, would have been advised to us
prior to the creation of
the Notice of Motion, that matter no doubt would not have been pursued.
...
We no longer need to press the first particular sought, just to make that
clear, your Honour, now that my friend has clarified the
Prosecution's position
on that. Nothing further your Honour.
- In
an extempore decision in which the CIM dismissed the Notice of Motion,
the appellant's application was considered against the prosecution's earlier
response to the request for particulars, namely that the means to appropriately
secure the beam was "any means" which would prevent
the beam from falling.
According to the CIM, the means or method to be adopted to secure the beam, "is
not a matter which the Prosecutor
must prove in its case to establish a breach
of the Act".
- According
to the appellant the CIM fell into error by failing to order the respondent to
provide further particulars with regard to
Particular 1. We do not agree. The
focus of Particular 1 during the hearing of the appellant's Notice of Motion was
on the alleged
omission or measure not taken by the appellant to secure the beam
"in position" on the two brick piers. At that stage of the proceedings,
the
appellant's responses to the respondent's submissions indicated that it
understood the allegation underpinning Particular 1 and
it no longer needed to
press its application with regard to that Particular.
- The
CIM was also correct to point out during the hearing of the preliminary
application that the "means" or "method" which might be
adopted for securing the
beam were not matters upon which the respondent bore an onus. That being so,
there was no requirement upon
the respondent to particularise in the CAN the
means through which the measure or measures could or might be achieved. The
respondent
was required to provide sufficient information in the charge so that
the appellant knew what it was it had failed to do and should
have done: John
Holland (Court of Appeal) at [140] per Giles JA. This general proposition
does not foreclose the possibility that there may be circumstances
arising out
of the nature of the evidence or the conduct of the proceedings where fairness
demands that a defendant be provided with
further particulars: see by way of
analogy Environment Protection Authority v Sydney Water Corporation Limited
(1997) 98 A Crim R 481 at 484 per Gleeson CJ.
- The
distinction between a measure and the means or method of achieving the measure
was adverted to by the Full Court in Morrison v Chevalley [2010]
NSWIRComm 116; (2010) 198 IR 30. It emerged during consideration of whether it
was necessary to plead the relevant act or omission of a director in a charge
brought
against the director under s 8(1) by virtue of s 26(1) in order that he
or she may understand how to frame a defence under s 28.
The Full Court
considered that it was not necessary (at [87], [95], [96]). On the distinction
between "measures" and "means" the
Full Court said (at [135]):
The defendants, however, submit that the decision of the High Court in
Kirk requires that the directors, in these cases, also be informed of
what means they should have adopted to address the measures that
were not taken
by the corporation. This approach would require the prosecutor to instruct the
directors as to which safety body he
may have directed instructions to or to
specify what provider of services he may have engaged to ensure that there was
an adequate
berm or road design that prevented coal trucks from running off the
steep mine road. This approach misunderstands the structure and
proper
construction of s 26 as already discussed. Section 26 is concerned with the
contravention of a corporation. When there is
shown to be such a contravention,
each director (or person concerned in the management of the corporation) "'is
taken to have contravened
'the same' provision unless one of the defences
specified in [a] or [b] is made out. Both defences are drawn by reference to the
'contravention' by the corporation - not by reference to some other conduct or
omission of the directors. If the corporation failed
to have a berm of
sufficient size to prevent a coal truck from running off the mine road, then
that is the measure that the defendant
directors failed to take. This particular
satisfies the Kirk requirements. Just as the prosecutor is not obliged to
instruct the corporation of the method or entity by which such a berm might
or
should have been constructed, neither is the prosecutor obliged to inform the
directors of such methods or entities. The directors
answer may be that such a
berm could not have been safely erected or erected at all for geological and/or
engineering reasons but
that possibility does not detract from or render invalid
the particularisation provided by the prosecutor in these matters - those
possible difficulties (if they arise) are matters for the trial.
- On
29 October 2007, the matter came on for hearing before the CIM. In its opening
the prosecution outlined its case with regard to
Particular 1 in the following
way:
The first is a failure to adequately secure the beam in position and that
particular focuses upon the risk that was posed by the unsecured
beam being at
height and having the prospect of falling. Of course, if it was failsafe,
secured by say, for example, nuts and bolts
and I put that colloquially, or
alternatively secured by lying on the floor where it could not fall, the risk
wouldn't have emerged.
- The
respondent's case with regard to Particular 1 as described in the opening
differed fundamentally from its earlier particularisation.
The CAN, on its face,
contemplated that the beam was not secured "in position", that is, two metres
above the ground on the brick
piers. The allegation that the beam was not
secured by placing it on the ground constituted a new particular not the subject
of earlier
particularisation. The respondent moreover placed reliance on this
new allegation to make out Particular 1. In closing submissions
the respondent
said:
The prosecution was invited before trial and again during the trial to
further particularise this aspect of the charge. The prosecutor
articulated the
particular by informing the defendant that the steel beam was to be secured 'by
any means that would have ensured
it did not fall from height'. The prosecution
opened the case that way (T1 5.30-40) although it had informed the defendant
that that
was the case before trial (see the discussion at T1 30.20-34.12).
Securing the beam was to be achieved either by making certain it
could not have
fallen from its position (T1 34.40) or by not having it up high at all (T1
34.41). The steel beam could have been
secured by laying it on the ground or
having it elsewhere.
...
It is clear from the evidence that the steel beam was not secured either to
the top of the brick pillars or in some other way.
...
Further, the steel beam could have been secured in the manner particularised
(by placing it in such a position so as to make sure
it did not fall on
Mitchell) by simply placing it on the ground or somewhere else so that it simply
could not fall. It is important
(both to the particular and to the defence that
the defendant might ultimately rely upon) to remember that, on the defendant's
own
evidence, there was simply no need for the beam to be on top of the brick
pillars on the day at the time immediately before it fell.
...
... had the steel beam been on the ground or off the site or affixed up high
in such a manner that it could not have fallen there
would have been no risk to
Mitchell. There is no evidence before the Court in terms of time, money or
expense (or some extravagant
level of ingenuity) that would suggest that having
the beam other than where it was could not have been reasonably achieved. Indeed
removing the beam to the ground or away from where it was does not appear to
have been something that could not have been done and
would have secured it so
that it presented no risk at all to anyone.
...
... The defendant has led no evidence that it would have been expensive and
time consuming to remove the beam from where it was high
up in the sky.
- Shortly
after the opening, the appellant raised its concerns that the prosecution was
intent on prosecuting an entirely new case with
regard to Particular 1, which
was different from that which had been earlier particularised. The appellant
complained that until
the prosecution had opened on Particular 1, its case had
always been advanced "in the context of ... securing the beam ... by any
means
in position on top of the brick piers", which did not contemplate securing the
beam by placing it on the ground. The appellant
contended that the respondent
ought be bound by its earlier particularisation since if it had intended to rely
upon "this second
leg" to make out Particular 1 the appellant should have been
notified of this from the outset. The appellant also sought to rely
on
paragraphs 16-19 of the Statement of Facts that had been provided earlier to it
by the respondent. The appellant relied in particular
on paragraph 16 as
focussing on the manner in which the beam would not fall. The appellant also
sought to explain that it had not
pressed its earlier requests for further
particulars with regard to Particular 1 because, "it was made clear that there
would not
be any reliance on some other general matters ... other than those
contemplated in the statement of facts in paragraphs 16-19. They
don't
contemplate things or beams being placed on the ground".
- The
respondent submitted that its case was unchanged because it had consistently
alleged that the beam could have been secured "by
any means" so that it did not
fall from its position, "where it was to the ground".
- According
to the CIM the prosecution was required to supply enough information to the
appellant so that it understood the case it
had to meet but the requirement in
order to be met did not extend to setting out "all possible alternative ways in
which the risk
have been eliminated or controlled". His Honour made the
following additional observations:
If the beam had been on the ground it could have represented a hazard to
someone who could have stubbed their toe on it or driven
a vehicle over it. They
could have had all sorts of difficulties with the beam being on the ground and
it is quite clear that the
prosecutor does not in any way rely on such a risk in
these proceedings. It relies only on the beam in the sense that it was a hazard
because there was a risk that it would fall. That's the only aspect of the beam
that they come to the court with.
What they don't have to do is make a list of all the ways in which the
defendant might have eliminated or controlled that risk. It
is obvious that one
way would have been to secure it so that it couldn't have been knocked from its
position, and another way would
have been not to have it there at all. They
could have had it lying on the ground or they could have had it in a warehouse
somewhere.
They could have had it at someone's house. There's 101 things they
could have done with the beam which would have stopped it from
falling. The
prosecutor doesn't have to enumerate all of those. That's all Mr Reitano said
today. He said it could have been secured
or it could have been on the ground.
But they don't change the nature of the risk that we're looking at. We're
looking at the beam as a hazard because it could fall and
strike someone, not
because it was on the ground and you could stub your toe on it or anything like
that. you don't have to worry
about that. They have not in any way
particularised any risk in relation to the beam other than the risk associated
with it being
able to fall and strike someone. That's what has been
particularised, and I thin kit has been particularised adequately.
- The
respondent on appeal sought to characterise the new particular as another
"means" whereby the beam could have been secured in
position on the piers. We
cannot agree. There is no logical connection between a "means" for securing the
beam by placing it on the
ground and a "means" for securing the beam in position
on the brick piers. To illustrate the point, tying the beam or bolting it
to the
two brick piers might constitute two possible means of securing it in position
on the two brick piers. In contrast, placing
it on the ground could not, on any
rational construction, constitute a means of securing the beam in position on
the piers.
- The
CIM's remarks extracted above indicate, in our opinion, that his Honour did not
properly take account of the conceptual shift
that had occurred in the
prosecution's case with regard to Particular 1. The new particular constituted a
new and independent measure,
not as the respondent sought to characterise, one
of several means by which the measure of securing the beam "in position" on the
piers could be achieved. The introduction of another measure by which the beam
could be secured had taken the appellant by surprise
and potentially placed it
at a disadvantage in terms of raising a defence based on the reasonable
impracticability of securing the
beam by placing it on the ground. Particular 1
in its final version was comprised of two mutually exclusive constituent parts.
Until
the prosecution's opening, the appellant had proceeded upon an
understanding that the omission relied upon to make out Particular
1 was
confined to one measure that should have been taken to secure the beam in its
position on top of the piers. It was redefined
during the opening when it
emerged for the first time that the prosecution was also relying on an
additional measure to make out
the Particular.
- Particular
1 as drafted incorporated one measure which was, in our opinion, sufficiently
certain in its terms to satisfy the requirements
of a valid charge. The
introduction into Particular 1 of the notion that the beam should have been in a
position other than resting
unsecured on the two piers, by placing it on the
ground, made the CAN ambiguous and uncertain. In addition, the respondent had
not
at any stage prior to the substantive hearing sought to disabuse the
appellant of that notion. Consequently, the appellant had not
had the
opportunity prior to the hearing to prepare a defence that it was not reasonably
practicable for it to have secured the beam
by placing it on the ground. Its
expert reports, which had been filed and served on the respondent prior to the
hearing, focussed
on the impracticability of securing the beam in position on
the two brick piers.
- The
disadvantage under which the appellant had been placed in order to meet what was
effectively a new case presented by the prosecution
during its opening was
apparent during the course of the proceedings. The CIM, in the judgment of 28
May 2008, remarked that evidence
led by the appellant which was intended to
constitute a reconstruction of the beam being struck in conditions replicating
those prevailing
at the site on the day of the accident, "did not address the
question of why the steel beam was up in the air ... and the placement
of the
steel beam at ground level or in some other location is simply not addressed by
the defendant".
- The
introduction of the measure at such a late stage of the proceedings, over
objection, visited an unfairness on the appellant. Not
only did the respondent
fail to notify the appellant about the new allegation prior to the proceedings,
the respondent had consistently
characterised the case with regard to Particular
1 on a basis fundamentally different from the case presented at the hearing.
This
was despite repeated attempts on the appellant's part to obtain
particulars. We can see no good reason, nor has one been advanced,
why the
respondent could not, at an earlier stage, have informed the appellant of its
intention to allege that the manner in which
the beam was unsecured would
include the notion that it could have been placed on the floor or on the ground.
The CAN was not amended
by the respondent to reflect the new allegation and the
appellant was not afforded the opportunity, given the late notification,
to
properly consider the new allegation and its impact on the defences it intended
to raise.
Particulars 2, 3 and 4
- We
turn now to consider Particulars 2, 3 and 4 in relation to which the appellant
submitted that the allegations founded on those
Particulars were also
insufficient to meet the proper requirements for a valid CAN.
- Particular
2 (which alleged a failure, "to ensure that persons did not access the area
beneath the unsecured beam") was said to be
defective because it was based upon
the premise that the unsecured beam was "in position" on the brick piers on 26
October 2004,
and it referred to persons in general not accessing the area
beneath the beam. It was also said to be defective because it was not
expressed
to relate back to the nature of the tasks being undertaken at the time under
consideration, and it did not identify the
response required of the appellant.
- Contrary
to the appellant's first contention, the proceedings below reveal that the
respondent conducted its case with regard to Particular
2 based on the unsecured
beam being in position on the two brick piers. Moreover, the Particular is
referable to the time at which
the movement of the timber and the striking of
the beam occurred, specified in the CAN as "approximately 7.00am on 26 October
2004".
This is alleged in the CAN to be the time at which Mr Mitchell ("the
injured worker") was standing in front of the garage area when
he was struck by
the dislodged beam. The measure is also, in our opinion, sufficiently identified
in the Particular, namely, the
appellant should have prevented Mr Mitchell from
accessing the area where he was exposed to the risk of being struck by the
unsecured
beam. The appellant at no stage sought specific and separate
particulars with regard to Particular 2. This suggests that it was reasonably
content with, and understood, the allegation made against it in the Particular.
- The
appellant also contended that if the respondent had properly pleaded its case in
the CAN with regard to Particular 2, it would
have been necessary for the
respondent to adduce evidence as to the type of force necessary for the beam to
become dislodged and
unless and until that could occur the beam posed no risk to
anyone. In addition, without this evidence the defence under s 28 could
not be
properly addressed. This was said to be because the nature and degree of any
force required to compromise the security of
the beam would have to have a real
bearing on the foreseeability of it falling and thus the practicability of any
required response.
- According
to the respondent, the risk was that the beam might fall if dislodged from the
place where it sat if a force sufficient
to make it fall were applied to it.
This is a matter of common sense and rational deduction from the CAN. The size
of the impact,
if relevant, required to dislodge the beam goes only to the
likelihood of the risk coming to fruition or the issue of remoteness.
It does
not identify the essential character of the risk.
- Long-established
authority demonstrates that what the respondent was required to prove was that
the omission pleaded in Particular
2 gave rise to the risk to which Mr Mitchell
was exposed. It is open to a prosecution to prove the connection by reliance on
the
facts underpinning an accident if the inference is available that the
accident, and the sustaining of an injury arising from that
accident,
constitutes a manifestation of the risk relied upon: see for example Drake
Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales
(Inspector Ch'ng) (1999) 90 IR 432 at 452. We have no doubt that the
unsecured beam which was dislodged by the timber frames, causing it to fall on
Mr Mitchell and
injuring him, was directly illustrative of the risk to safety
relied upon by the respondent, namely that the beam, being unsecured
and resting
on the brick piers, could be dislodged and fall and strike someone in the near
vicinity. That being so, the appellant's
contention that it was incumbent on the
respondent to prove the type of force necessary to dislodge the beam in order to
make out
its case cannot be sustained.
- As
to evidence led by the appellant in the proceedings below with regard to the
nature and force required to move the beam, this evidence
may have been relevant
to an issue going to the possibility of the risk coming to fruition or the
remoteness of the risk. It would
need to be assessed against other evidence
going to the circumstances of the accident where the accident was relied upon as
an illustration
of the risk. Here, the facts underpinning the accident disclose
that the risk as alleged was real, not remote. The CAN must also
sufficiently
identify the risk alleged to enable a defendant to know the case it has to meet.
We have earlier found that the CAN
satisfies this requirement.
- With
regard to Particular 3, the appellant raised three matters. First, it was
contended that the respondent had misinterpreted the
width of the Particular in
its opening by describing the allegation as a "failure to warn people or to
provide information or to
warn people that the beam was unsecured". Secondly, it
was contended that Particular 3 is silent as to what was the information or
warning or how, when or by whom the information or warning was to be given.
Thirdly, the CIM's manner of dealing with Particular
3 was said to be inadequate
and bereft of necessary reasoning.
- The
contentions in our opinion lack merit. With regard to the first matter, the
respondent's case did not rely on a failure to warn
or provide information to
persons in general who were present at the site. Its case was confined to the
allegation in Particular
3, namely, that Mr Mitchell was not the beneficiary of
any warning or information with regard to the risk posed by the unsecured
beam.
With regard to the second matter at no stage of the proceedings did the
appellant dispute that it had failed to issue a warning
or inform Mr Mitchell
that the beam was unsecured. The appellant must be taken to have understood the
allegation in Particular 3
because it did not request any further particulars of
the allegation. In any event, in our opinion, Particular 3 describes the measure
with sufficient clarity to have enabled the appellant to meet the respondent's
case.
- The
third matter criticises a failure of the CIM to take into account first that the
appellant required and expected a full site inspection
to be undertaken by the
crane operator before work was commenced in accordance with its procedures in
place at the site, and secondly,
that highly experienced specialist operators
would know not to stand underneath a load while the load was being moved.
Earlier, we
set out the facts that preceded the accident. Those facts reveal
that both the crane driver and Mr Mitchell undertook an inspection
of the site
and ultimately devised a plan to unload and deliver the frames in order to
overcome the perceived risks associated with
the Franna crane coming into
contact with the powerlines. The workers were aware that the beam was unsecured
but this awareness does
not absolve the appellant from its statutory obligation
to ensure the safety of all persons working in the vicinity of the beam.
The
appellant controlled the site, not the subcontractors who visited the site on
the day of the accident. The appellant also knew
that the subcontractors were
attending the site on the day and it must be taken to have known of the progress
of construction of
the building. We have sought to emphasise in some detail in
this judgment the nature of the obligation imposed on a defendant under
the 2000
Act. It is absolute (in the sense we have described) and non-delegable.
Consequently, it was the responsibility of the appellant,
not the
subcontractors, to ensure that the site was safe and without risk.
- The
appellant's contentions with regard to the remaining Particular 4 (failure to
provide "the injured worker with a site induction)
focussed primarily on the
failure of the CIM to order the provision of further particulars by the
respondent during the appellant's
preliminary application for further
particulars in relation to Particulars 1 and 4. According to the appellant the
respondent's failure
to supply the particulars meant that it was denied
procedural fairness. It was also forced to defend the allegations in Particular
4, which it said were defective. It was further contended that it was
impermissible for the respondent, given the form of the CAN,
to assert in
written submissions that the appellant had failed to induct Mr Mitchell to the
site "on 26 October 2004" or to assert
that, "as a minimum the site induction
should have alerted Mitchell to the presence of the steel beam, the danger it
posed to him,
and the control mechanisms that the defendant had put in place to
eliminate that danger".
- The
respondent's letters responding to the appellant's requests for further
particulars with regard to Particular 4 have been earlier
set out. The
appellant's application by way of Notice of Motion, although framed generally,
was largely confined to its requests
for further particulars with regard to
Particular 1. Any complaint with regard to Particular 4 during oral hearing of
the application
appears to have been put on the general basis that Particular 4
lacked sufficient content such that the appellant did not know the
nature of the
case alleged against it. A written outline of submissions prepared by the
appellant which was handed up to the Court
during the hearing of the Motion
referred to the respondent's reiteration of cl 213 of the Occupational Health
and Safety Regulation 2001 (2001 Regulation) as not constituting a response to
its request for particulars contained at point 3 of its letter of 28 February
2007 concerning those "facts and matters" relevant to the failure to provide Mr
Mitchell with a site induction. No further complaint
with regard to Particular 4
was made by the appellant in the proceedings below following the CIM's decision
not to order that further
particulars be supplied.
- In
our opinion, Particular 4, by reference to the other particulars in the CAN, is
confined to the failure to conduct a site induction
on 26 October 2004. The
appellant sought to rely on evidence establishing that Mr Mitchell had been
inducted to the site on a previous
occasion and therefore, by implication, it
was not incumbent upon the appellant to undertake a further site induction. That
evidence
was said to consist of a risk assessment of the site conducted by the
appellant's supervisor, Gregory Ballard, on 21 June 2004, a
running sheet
prepared by Mr Ballard showing that the crane driver and dogman from Structural
Cranes were inducted to the site on
3 September 2004 and a tax invoice of 3
September 2004 issued by Structural Cranes to the appellant which nominated Mr
Mitchell as
the rigger.
- Mr
Ballard gave evidence in the proceedings below. During cross-examination, he
said when shown the tax invoice of 3 September 2004,
that that was the first
time Structural Cranes personnel had visited the site. A proposition was put to
him that on that occasion
he had inducted Structural Cranes personnel to the
site. His response was, "Yes ... I would have been the only person there to show
them what to do". Otherwise, Mr Ballard had no independent recollection of
actually performing a site induction on that day. The
first document relied upon
suggests that on 6 September 2004, or at some earlier stage (the relevant entry
is undated) a, "crane
driver and dogman" from Structural Cranes were inducted
to, "site hazards on first visit". The second document suggests that on 3
September 2004, Mr Mitchell, nominated as the rigger, attended the site to "move
some timbers". Mr Mitchell also gave evidence in
the proceedings below. He
recalled visiting the site on one occasion prior to 26 October 2004. He said at
that time construction
work had not commenced. There was a cement slab and a
number of bricks that needed moving. He said he and others could not get the
crane onto the site in order "to do the job" because the ground was wet and
boggy. He was shown the tax invoice dated 3 September
2004 and said that that
was the day they could not get the crane onto the site. He confirmed that that
was also the only time he
had been to the site prior to 26 October 2004. He also
denied having been inducted to the site at any stage.
- This
evidence insofar as it relies on establishing the fact that Mr Mitchell was
inducted to the site on a previous occasion is inconclusive.
The documentation
only establishes that on 3 September 2004 Structural Cranes was hired to move
timber at the site but according
to Mr Mitchell this did not occur because of
the conditions prevailing at the site. The document dated 6 September 2004,
which was
signed by Mr Ballard, suggests that an unnamed crane driver and dogman
from Structural Cranes were inducted to the site, but Mr Ballard
had no
independent recollection of that having occurred. Mr Mitchell denied ever having
been inducted to the site.
- Of
significance was Mr Mitchell's description of the site on his earlier visit.
That description reveals that construction of the
residence had not commenced.
It consisted of a concrete slab and some bricks that needed moving. Based on
this evidence it was open
to the CIM to find as he did that "the debate" as to
whether Mr Mitchell had been inducted to the site by the appellant prior to
26
October 2004 was, "a barren one, since for a site induction to have any
relevance it has to identify hazards and these will obviously
change from time
to time".
- Contrary
to the appellant's submission, we are of the view that the CAN was not defective
by reason of a failure to sufficiently identify
the measure not taken alleged in
Particular 4. The CAN clearly nominated 26 October 2004 as the date on which the
allegation in Particular
4 was based. The Particular, in our view, also
sufficiently set out the measure relied upon, that is, the appellant failed to
provide
Mr Mitchell with a site induction. The Particular cannot be considered
in isolation. It formed part of the CAN and was directly referable
both to the
date nominated in the CAN of 26 October 2004, and to the particulars of the
accident set out in the CAN.
- The
appellant also contended that the CIM had impermissibly reversed the onus of
proof with regard to Particular 4 when his Honour
said, "in my view the evidence
is insufficient to establish that an induction took place". While it is
indisputable that the onus
was on the respondent to prove the allegation beyond
reasonable doubt, the evidence clearly established to the requisite standard
that on 26 October 2004 the appellant did not provide Mr Mitchell with a site
induction. Indeed, that fact did not appear to be in
dispute. Rather, the debate
centred upon whether Mr Mitchell had been inducted to the site on a previous
occasion.
- Given
our conclusions on the issue of whether the CAN was defective by reason of its
failures to sufficiently identify the measures
in the Particulars the CIM's
finding of guilt with regard to Particular 1 cannot stand. The Particular was
defective because it did
not specify the second measure which was relied upon by
the respondent during the course of the proceedings. Otherwise, the CAN
identified
the risk and the measures relied upon to make out the Particulars 2,
3 and 4 with sufficient clarity and precision to enable the
appellant to meet
the respondent's case.
The reasoning process of the CIM
- The
grounds of appeal also raise a discrete issue regarding the CIM's reasoning
process in the judgment on liability. In written submissions
the appellant
identified four issues, which it said demonstrated errors in the reasoning
process. Those issues consisted of the factual
dispute concerning the allegation
in Particular 4 with regard to the failure to provide Mr Mitchell with a site
induction; the manner
in which the work was being done at the site at the time
of the accident; the importance of the subcontractors' expertise in the
performance of their duties; and, the CIM's consideration of the expert
evidence. These topics will be considered seriatim .
Site induction
- According
to the appellant, the CIM posited the wrong question with regard to the
allegation in Particular 4. In the judgment, the
CIM formulated the issue in the
following way: "Whether on the day of the alleged offence the defendant ensured
that persons at the
site, including the injured worker, Mr Mitchell, had the
benefit of a site induction". This formulation, the appellant contended,
was
wrong because it purported to apply to whether persons in general had undergone
a site induction. Particular 4, however, was
confined in its terms to whether Mr
Mitchell had undergone a site induction.
- The
appellant also contended that the CIM failed to analyse the evidence relevant to
the issue of whether Mr Mitchell had been inducted
to the site on a previous
occasion, or at all.
- We
earlier observed that the respondent's case with regard to Particular 4 was
consistent with the allegation set out therein, that
is, it was confined to Mr
Mitchell, "the injured worker". The CIM's reasoning with regard to this aspect
of the allegation was also
entirely consistent with the allegation in Particular
4, directed as it clearly was to Mr Mitchell. The CIM referred to the evidence
of Mr Mitchell that he was not given a site induction at the site on 26 October
2004. His Honour also referred to the "two invoicing
documents" which had been
prepared about two months before the accident occurred (the documents earlier
referred to, dated 3 and
6 September respectively). The documents were relied
upon by the appellant as evidence that Mr Mitchell had been inducted to the
site
on an earlier occasion. His Honour did not accept that evidence as sufficient to
establish that an induction had taken place
on an earlier occasion.
- The
appellant, in written submissions, referred in detail to evidence given by Peter
James, a crane driver from Structural Cranes;
Mr Martin, Mr Fischer, Darren
Wright, the manager of Structural Cranes, and Mr Ballard. This evidence, it was
contended, was not
analysed by the CIM on the issue of whether Mr Mitchell had
been inducted to the site. In relation to Mr Ballard's account as to
whether an
earlier site induction involving Mr Mitchell had occurred, the appellant also
contended that it contradicted the CIM's
finding which was, "[N]o evidence was
called from any person employed by the defendant to the effect that they had
provided Mr Mitchell
with a site induction".
- An
examination of the evidence set out in the appellant's submissions does not
provide support for the appellant's contentions that
the CIM either failed to
analyse the evidence relevant to whether Mr Mitchell had undergone a site
induction or made a finding, or
findings, inconsistent with that evidence.
- The
evidence of Mr James relied upon by the appellant was of no direct relevance to
the issue. Mr James expressed agreement on various
propositions put to him in
cross-examination to the effect that it was part of the job of a crane driver
and dogman to inspect a
site and assess it for hazards. The evidence of Mr
Martin as set out in the appellant's submissions consisted of his recollection
that he and Mr James had noticed the beam before the accident and they had
spoken of the need, "to watch the beam". Mr Wright's evidence
(as set out in the
submissions) did not touch on the issue of a site induction. He simply agreed to
several propositions put by the
appellant in cross-examination that the
appellant had a practice of hiring crane drivers and dogmen from Structural
Cranes, and that
Messrs Mitchell, Fischer and James were, in his opinion, highly
qualified men. Mr Fischer's evidence, set out in the appellant's
submissions,
outlined a conversation he had had with unnamed carpenters at the site on the
day of the accident which apparently involved
one of the carpenters warning him
about "the columns", saying, "don't knock them over or bump them or anything
like that". As for
Mr Ballard's evidence, it has been earlier set out and needs
no repetition. Contrary to the appellant's suggestion that Mr Ballard
"acknowledged" in his evidence that Mr Mitchell was inducted by him to the site
in early September 2004, the evidence does not sufficiently
support the
suggestion. That evidence included the invoice of 3 September 2004. The invoice,
it will be recalled, was generated by
Structural Cranes. It nominated an
activity ("move some timbers") to be performed at the site and Mr Mitchell as
the rigger. Mr Ballard,
however, had no independent recollection of actually
performing a site induction on that day. When asked in cross-examination whether
he had inducted "persons ... from Structural Cranes" to the site on 3 September
2004, his response, ("Yes ... I would have been the
only person there to show
them what to do") could only have been based on what the document indicated, not
what he recalled.
- Finally,
on this issue, it will be recalled that Mr Mitchell said, in his evidence, that
conditions at the site on 3 September 2004
prevented him and the other workers
from performing any work at the site on 3 September 2004. He recalled that the
site at that time
consisted of a concrete slab and some bricks. He denied having
been inducted to the site at any time. The CIM took this evidence
into account
in his consideration of Particular 4 when his Honour found that, "On the day in
question ... no site induction was provided
to Mr Mitchell". The day in question
was a reference to Mr Mitchell's first visit to the site when construction of
the residence
was in the early stages. The CIM said that the debate on this
issue was "a barren one", because, "[F]or a site induction to have
any
relevance, it has to identify relevant hazards and these will obviously change
from time to time. For Mr Mitchell to have received
an adequate site induction
in relation to this site, warning him of general hazards at the site, he would
have needed a site induction
at the site at the relevant time, that is at the
time he was exposed to the relevant risk". In our opinion, this finding was open
to the CIM.
- The
real issue was whether Mr Mitchell had, consistent with the allegation, not been
inducted to the site on 26 October 2004. The
respondent's case demonstrated that
Mr Mitchell had not been inducted to the site on that day, or on any previous
day.
Manner in which work was being done at the site, and subcontractors'
expertise
- The
submissions of the appellant with regard to the second and third issues
substantially overlap. That being so, the issues will
be considered together.
According to the appellant, a threshold question which arose for consideration
and demanded analysis by the
CIM involved consideration of whether the events
which culminated in the accident on 26 October 2004 arose from the
"uncontemplated,
independent decisions" of experienced subcontractors which
exposed them to a risk to their safety arising from the conduct of the
appellant's undertaking or whether the risk arose from the "neglect" of the
subcontractors in the performance of their work.
- The
critical question to be considered under s 8(2), is whether the employer failed
to ensure that non-employees at its place of work were not exposed to risks to
their safety arising
from the conduct of its undertaking. The obligation on the
employer under the section, as we have sought to emphasise, is absolute
(subject
to any relevant defences) and non-delegable. This proposition contemplates that
any neglect, inadvertence or error on the
part of a worker that may have
contributed to the risk does not diminish the nature of the obligation imposed
on the employer. The
proposition was expressed by the Full Court in Riley v
Australian Grader Hire Pty Ltd [2001] NSWIRComm 31; (2001) 103 IR 143 at
145:
... The magistrate appears to have reached her conclusion as to the objective
seriousness of the offence, having regard to the lack
of common sense of the
injured worker. It is reasonably clear from her decision that it was concluded
that the conduct of the injured
worker effectively removed or minimised the
liability of the respondent in relation to the lack of training or instruction
afforded
the employee. This was wrong in principle. Section 15 of the
Occupational Health and Safety Act requires employers to be diligent and
proactive to ensure the safety of employees. Those obligations are not
diminished because of
the error or negligence of an employee, although such
matters may reflect on the degree of culpability of the employer for the
purposes
of sentencing. We note the following observations of Bauer J in
WorkCover Authority (NSW) (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd
(1995) 100 IR 248 at 257:
''Much of what was urged by Mr King was directed to showing that the worker
who was killed knew of, and therefore ought to have avoided
the exposed
electrical connections. In one sense such a submission militated against the
position of the defendant; the very purpose
of the Act was to introduce safe
working practices so that accidents are prevented. The Act was designed to
protect against human
errors including inadvertence, inattention, haste and even
foolish disregard of personal safety as well as the foreseeable technical
risks
in industry.''
- The
CIM addressed the issue raised by the appellant, which was whether Mr Mitchell,
an experienced and qualified dogman engaged by
the appellant to undertake the
work assigned to Structural Cranes, was incompetent in the manner in which he
had conducted the work
and chose to ignore the appellant's system of work
developed for the site.
- The
evidence concerning the activities of the Structural Cranes employees at the
site prior to the accident has been earlier set out.
The CIM set out in some
detail the appellant's submissions on the issue which were to the effect that Mr
Mitchell had chosen to abandon
a system of work developed by the appellant for
the site, instead directing and controlling the work in an incompetent manner
and
in a manner inconsistent with the proper and safe discharge of the
responsibilities of a dogman. The CIM did not accept these submissions.
In
particular he rejected the submission that Mr Mitchell was in charge of the
operation, finding that "no one was in charge". His
Honour referred to the
evidence concerning the decision of Messrs Mitchell and Fischer (and also Mr
Martin who appeared to have acquiesced
in the decision) to devise the
alternative plan for moving and lifting the timber frames because of the view
the men formed that
the appellant's plan was unsafe by reason of the presence of
the overhead powerlines. In relation to this evidence, the CIM said:
... The simple fact is that these contractors who were not employees of the
Defendant had arrived at the site, found that the proposed
system of work was
inadequate and had then, in an ad hoc way, cooperated with each other in what
they clearly regarded was a reasonable
alternative way of placing the timber
frames in the desired position at the site.
...
... I am satisfied on the evidence before me that Mr Mitchell, Mr Fischer and
Mr Martin had between them accurately identified potential
risks associated with
the original plan due to the positioning of overhead power lines and due to the
motor vehicle traffic on the
road immediately adjacent to the building site.
- The
CIM also referred to the appellant's submission that it was entitled to rely on
the specialist expertise of the subcontractors
to perform the work safely
because it lacked the necessary expertise. The CIM rejected the submission in
the following passages from
the judgment:
In my view there is nothing remarkable about a decision by a principal
building contractor to subcontract specialist tasks which have
to be performed
on a building site. This may involve specialist crane companies to supply cranes
together with specialist teams,
or electrical subcontractors, or plumbing
subcontractors and so on. It is obvious that such subcontractors are engaged on
the basis
that they bring their specialised skill and knowledge with them onto
the site. However, what they do not bring with them onto the
site is site
specific knowledge especially site specific knowledge relating to any hazards
that may be present and in relation to
which they require appropriate notice and
warning. A building site is an ever changing collection of potential hazards. As
each stage
of the construction is commenced new hazards arise whilst others are
eliminated. As each new team of employees or subcontractors
comes onto the site
to perform some specific task in the construction process, the condition of the
site changes.
It has been observed in occupational health and safety prosecutions before
the Industrial Court of New South Wales that a major role,
indeed the major role
for a principal building contractor to play is the role of providing supervision
and coordination between such
different groups and trades as they move on and
off a building site. In this case, whilst the Defendant had given some
consideration
to the task and had prepared a plan for the required work to be
performed, the plan itself was clearly inadequate in that it failed
to take into
account the position of the overhead power lines and the traffic problems which
impacted on the positioning of the Franna
crane. The Defendant did not have an
employee on site authorised to provide supervision and coordination to the
subcontractors who
were at the site at 7.00am on that day. This meant that there
was no-one at the site authorised and instructed to ensure that such
subcontractors were fully aware of any hazards that might be relevant to the
task they were about to perform. The evidence is clear
that no site induction
was provided to such contractors on the day in question. On the evidence, Mr
Mitchell was never given an induction
of the site, but even if he had received
some induction many weeks earlier, such induction would have been irrelevant in
that it
would not have included any relevant warning alerting him to risks to
his safety present at the site on the day of the alleged offence.
- In
our opinion, the CIM was entitled to make these findings. The matters taken into
account by his Honour were relevant to the issue
under consideration which, in
essence, was whether the subcontractors' actions in devising or implementing the
alternative plan had
exposed themselves to risk thereby effectively exculpating
the appellant because it was entitled to rely on their expertise and
qualifications
to make safe decisions and to perform the work safely.
- During
the hearing of the appeal, the appellant characterised the issue as requiring
consideration of whether the risk arose from
the conduct of its undertaking or
whether it arose from independent choices made by people other than in
accordance with the terms
of the contract. The terms of the contract according
to the appellant were to attend the site with the Franna crane, driver and
dogman
and unload the frames from the truck on the road and "mobile" them along
the street through the site access gates and onto the upper
level of the
residence. The conduct of the subcontractors in acting outside those terms was
said to give rise to a real risk where
previously the risk was "fanciful". It
was "fanciful" because under the appellant's system the stability of the beam
would not be
compromised and the beam of itself posed no danger to anyone. So
characterised, the actions of the subcontractors gave rise to the
risk to which
Mr Mitchell was exposed and this risk in turn did not arise from the conduct of
the appellant's undertaking.
- The
appellant's undertaking was described in the CAN as "the construction of a
two-storey dwelling". This broad description, in our
opinion, readily
encompasses the activities of the subcontractors who were engaged to deliver and
unload the timber frames and deposit
them on the upper level of the building.
The fact that they set out to accomplish this task by adopting an alternative
plan, which
they believed would accommodate safety concerns, falls to be
assessed by reference to circumstances prevailing at the site. Those
circumstances included the appellant's failures to take the measures set out in
Particulars 2, 3 and 4. Moreover, the appellant as
the principal contractor at
the site bore the obligation to ensure the safety of the subcontractors. That
obligation could not devolve
on Mr Mitchell, or the other subcontractors, to
ensure their own safety. It was the appellant's failure to take the measures
specified
in Particulars 2, 3 and 4 that resulted in the risk that the beam,
resting unsecured on the piers, could be dislodged by the load
of timber frames,
and injure Mr Mitchell who was working near the beam (the necessary causal
connection between the identified risk
and the alleged omissions).
- The
"contractual terms" upon which the appellant placed reliance were not in
writing. What, in our opinion, the appellant characterised
as the terms of the
contract between the parties more accurately describes the procedure, or the
system devised by Mr Ballard as
the appellant's supervisor at the site. Mr
Ballard was absent from the site on 26 October 2004. The only evidence of the
work that
Structural Cranes was engaged to do on 26 October 2004 appears in the
Statement of Facts tendered by consent in the substantive proceedings.
According
to that document:
On 25 October 2004 Masterton contracted with Structural Cranes Pty Ltd
("Structural") to attend the site with a Franna crane, a crane
driver/operator
and a dogman to unload the frames from the back of a truck and place them on the
upper level of the building ready
for installation.
- The
procedure devised by Mr Ballard for the unloading of the frames was also
described in the document:
Ballard had earlier devised a system to unload the frames by unloading the
frames from the truck using the Franna on the roadside
and then "mobile" them
along Henry Street, through the site access gates and then land them on the
upper level.
- In
support of the contention that the risk to which Mr Mitchell was exposed did not
arise from the conduct of its undertaking, the
appellant directed the Court's
attention to Mainbrace Constructions Pty Ltd v WorkCover Authority of New
South Wales (Inspector Charles) [2000] NSWIRComm 239; (2000) 102 IR 84. An
issue in the case was whether electrical work being performed by subcontractors,
Kennedy-Taylor, which involved the reconnection
of thermostats, was work that
fell within Mainbrace's undertaking. In Mainbrace , the subcontractors
had been engaged under a variation to the original contract to remove cable
trays and disconnect the thermostats.
With regard to the reconnection of the
thermostats, the Full Court held it did not form part of the conduct of
Mainbrace's undertaking.
The Full Court, at [27], said:
It does not seem to us that re-connection of the thermostats was a term
necessary for the effective operation of the contract between
the appellant and
Kennedy-Taylor or that it was a term that ''goes without saying'': BP
Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266.
In other words, because Kennedy-Taylor disconnected the thermostats on the
appellant's instructions it does not
necessarily follow that re-connection was
part of the contract. On the evidence, it could have been a matter for Chisholm
to direct
Kennedy-Taylor to re-connect the thermostats. Accordingly, in the
absence of reliable evidence to the contrary, we are unable to
find that the
re-connection of the thermostats was part of the conduct of the appellant's
undertaking.
- In
contrast, the contract between the appellant and Structural Cranes consisted of
a broad instruction to unload the frames using
the Franna crane and deposit them
on the upper level of the building. If, for example, the subcontractors had used
the Franna crane
to lift a load of bricks situated at the site without being
instructed to do so by the appellant and an accident had occurred injuring
Mr
Mitchell, a submission that the risk did not arise from the appellant's
undertaking might have more merit. The terms of engagement
of the subcontractors
were confined to the unloading and depositing of the timber frames on the upper
level of the building, and
accordingly the activity fell within the conduct of
the appellant's undertaking to construct the dwelling. The original procedure
devised by Mr Ballard for accomplishing the task was not part of that
engagement. The fact that the subcontractors departed from
that procedure, for
reasons, we might add, which appear to be soundly based, arises for
consideration in the context of the appellant's
statutory obligation, any safe
systems or procedures put in place at the site to regulate the work to be
performed, the relevant
risk or risks relied upon and the omissions alleged in
the charge.
The CIM's consideration of the expert evidence
- According
to the appellant, the CIM's reasons were deficient with regard to his treatment
of the appellant's expert evidence. The
CIM, it was contended, neglected to
refer to much of that evidence or referred to it inadequately. Two particular
"aspects" of the
expert evidence were focused upon by the appellant as revealing
errors in the reasoning process. The first aspect concerned the issue
of whether
the beam could be secured in position. According to the appellant, the issue
involved consideration of the degree of force
required for the beam to be
dislodged. The evidence relied upon by the appellant to demonstrate the degree
of force required included
a reconstruction (of the circumstances of the
accident) and an evaluation of the forces by an expert, Professor Michael
Ashley, from
the School of Physics, University of New South Wales. The second
aspect concerned the evidence of Frank Bleasdale, a crane supervisor
and dogman.
- The
appellant, in written submissions, set out in considerable detail the evidence
of Mr Zomaya and Mr D'Amici, both of whom performed
tests which purported to
replicate the events of 26 October 2004 immediately preceding and at the time of
the accident. The appellant
said that the experiments proceeded upon Mr Zomaya's
understanding that the load (930kg) employed in the experiments was heavier
than
the actual load of timber frames (730kg), which struck the beam causing it to
dislodge. According to Mr Zomaya, the travel speed
of the crane used in the
experiment was slower than the travel speed of the crane at the time of the
accident. The appellant also
sought to draw comfort from the fact that Mr Zomaya
was never challenged with regard to his assumptions, nor his calculations and
conclusions, which were based on those assumptions. Similarly, Mr D'Amici, in a
report, concluded that a force of 59.6kg was required
to dislodge the beam given
an assessed impact force of 918kg. The appellant said that Mr D'Amici's
conclusions were also not the
subject of challenge.
- Given
that certain key facts underlying the conclusions of both Mr Zomaya and Mr
D'Amici were based on assumptions, we consider that
the CIM was entitled to find
that the evidence concerning the reconstruction was "unconvincing", and the
tests, of, "little value
unless all the relevant factors concerning the impact
are known and ... are replicated in the tests". The results of tests based
on
assumed facts are not persuasive of a submission that a considerable force was
required to dislodge the beam. The fact that the
calculations and conclusions of
the two experts were not challenged does not give them any greater efficacy, in
the absence of known
facts. The accident, on the other hand, was cogent evidence
that the beam could be dislodged, fall and injure Mr Mitchell who was
in the
vicinity.
- The
appellant also contends on this issue that the CIM's reasoning process was
deficient because it did not take into account Professor
Ashley's evidence. That
evidence was relied upon by the appellant to show that the beam was adequately
secured while resting on its
own weight on the brick piers. Professor Ashley's
evidence on this issue was to the effect that the beam would not move unless a
force not less than 45kg was applied at its end or a force less than 90kg was
applied to its centre. Moreover, according to Professor
Ashley the beam would
not be dislodged unless the force impacted "44 joules of energy into moving the
beam". He also said that if
both those conditions are not met the beam will
remain safely on the piers. Based on those considerations, Professor Ashley
concluded
that:
... the brick pillars alone are sufficient to adequately secure the beam from
being accidentally dislodged during construction, excluding
an exceptional event
such as striking of the beam with a heavy load.
- In
our view, this evidence was of little or no value to the issue under
consideration by the CIM, which was whether the respondent
had made out a case
on any or all of Particulars 1 to 4 in the CAN. Again, the accident amply
demonstrated that the beam was not
adequately secure because it was able to be
dislodged on impact. This evidence as we have emphasised was relevant to the
issue of
whether Mr Mitchell was exposed to a risk to his safety.
The defences under s 28
- On
the other hand, whether the beam could only be dislodged by an "exceptional
event" such as the beam being struck by a heavy load
may have been relevant to a
defence under s 28, namely, that it was not reasonably practicable for the
defendant to have complied
with omissions the subject of Particulars 2 to 4.
This, in turn, would have necessitated an assessment of whether the risk
identified
and relied upon by the respondent was reasonably foreseeable. A
relevant consideration in that assessment may well have been the
qualifications
and experience of Mr Mitchell. It appears to have been accepted on the evidence
that he was a highly trained and experienced
dogman. Other relevant
considerations might include that the subcontractors who were considered to be
highly qualified would devise
an alternative plan that was patently unsafe; and,
that Mr Mitchell would, contrary to behaviour expected of an experienced dogman,
"get in under the load", as well as physically handle the load.
- In
St Hilliers Contracting Pty Ltd v WorkCover Authority (NSW) [2007]
NSWIRComm 39; (2007) 162 IR 241, the Full Court extracted from the judgment in
WorkCover Authority (NSW) (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd
[2001] NSWIRComm 278; (2001) 110 IR 182 at 204ff what it referred to as "the
key principles" to be accepted in assessing the evidence relied upon to make out
a defence under
s 28(a) of the 2000 Act. These were described in Cleary Bros
by Walton J, Vice-President, in the context of s 53, the statutory precursor
to s 28 (at [87]-[88]):
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.
- Immediately
after extracting the passage from Cleary Bros the Full Court in St
Hilliers observed (at [28]):
It is important to note from this extract that different factors will assume
greater or lesser significance in the balancing exercise
depending upon their
magnitude in the circumstances of each particular case. For example, if there is
the potential for serious injury,
this factor becomes of greater weight and
significance; on the other hand, if the happening of an event is not reasonably
foreseeable
then it will not generally be reasonably practicable to make
provision against that event.
- The
CIM dealt with the defence advanced under s 28(a) in the reasons as follows:
The Defendant submits that the Court would find on the evidence that it was
not reasonably practicable for the Defendant to have had
on the site on the day
in question a supervisor or foreman or other person employed by the Defendant
who would have been available
to observe, direct, induct and warn the injured
worker of any hazards at the site. The Defendant had called evidence, including
members
of its senior management team, which explained the staffing arrangements
which had been put in place by the Defendant. The Defendant
is a large company
engaged in the construction of many residential buildings at any one time and
has developed a structure which
includes area managers and supervisors. A
supervisor may be required to supervise in excess of ten building projects at
any given
time, and as a consequence the role of the supervisor involved a great
deal of driving, moving from one site to another to check
on progress and deal
with any problems arising before moving on to the next site. Whilst a supervisor
might visit each of his projects
once a day, it was impossible for a supervisor
to be available at any one particular site at all times. Evidence was called as
to
the financial cost of the Defendant if it were to employ such a supervisor on
the basis of one supervisor for each building site.
Other evidence relied upon
by the Defendant was to the effect that because of the unreliability of
suppliers, the Defendant did not
require supervisors to be on site to meet
deliveries arriving from suppliers as a supervisor given such a task would often
find that
they would be waiting around for some hours waiting for such
deliveries to be effected. As a consequence, it was submitted that it
was not
reasonably practicable for the Defendant to have an employee in a supervisory
capacity at the site on the day of the alleged
offence.
I reject this submission. Whilst the Defendant produced some impressive
evidence concerning its commitment to occupational health
and safety matters,
including evidence going to a substantial expenditure on occupational health and
safety measures, the staffing
arrangements on site constitute a gap in the
Defendant's occupational health and safety system. It is not necessary for the
Court
to find that the Defendant should have had a supervisor on site at all
times whilst building work was being carried out. However,
the Defendant was
aware that it had arranged for Structural Cranes to despatch a Franna crane to
the site on the day in question
and that the Franna crane would be working in an
area where there were overhead power lines. Given those circumstances, it is
self-evident
in my view that the site in question warranted priority and the
Defendant should have had in place a system which ensured that appropriate
supervision was available at the site on the day. This would have enabled the
subcontractors, including Mr Mitchell, to receive a
site induction and would
have ensured that the Defendant, through its supervisor, participated in the
undertaking of a revised risk
assessment and the preparation of a revised safe
system of work. I do not accept that it was sufficient for the Defendant's
supervisor
to be contactable by phone. Whilst the Defendant submits that there
was an onus on Mr Mitchell and/or the other subcontracting employees
to
telephone the Defendant's supervisor, Mr Ballard, and report to him, the fact
that the original plan was unsafe, this is no more
than a claim that the
Defendant was entitled to delegate the entirety of its statutory obligations to
its subcontractors. Such a
submission is inconsistent with the Defendant
accepting that it had any obligation to ensure that the site was safe for
persons coming
on to it.
- The
appellant in the proceedings below had sought to make out a defence under s
28(a) on the basis that the risk that resulted in
an injury to Mr Mitchell was
not reasonably foreseeable. It also advanced a submission that the risk came to
fruition as a result
of the conduct of Mr Mitchell as the dogman, supervising
the unloading operations. The evidence of Professor Ashley and Mr D'Amici
were
relied upon to demonstrate that it was not reasonably practicable, "to have
measures in place to prevent the steel beam toppling".
In relation to this
latter point, Professor Ashley was cross-examined in the proceedings below by
the respondent about one of the
tests conducted by the appellant's experts which
had involved the bricking in of the columns in order to show that affixing the
beam
in some way could effectively result in greater injuries to any person in
the near vicinity. Professor Ashley explained:
... if the beam is free to move it can absorb the energy of the motion. For
example I think if the frames had been about half their
weight and the beam had
been free to move it would've been able to, it would've moved and it would've
absorbed the energy of the
frames before toppling off but it if had been rigidly
bolted down, it, even if the frames were about half their weight, it still
could've fractured and fallen so you're better off not to restrain the beam in
most cases I would say.
- Professor
Ashley was also asked in cross-examination if there were other measures
available to secure the beam, that is, other than
the premise accepted by
Professor Ashley that the beam was secure while resting on its own weight on the
piers. His response did
not suggest any other available measure by which it
might be reasonably practicable to have secured the beam:
... Well the sort of things you would have to, I mean, if, for example, you
could you know, cover the beam in a couple of cubic metres
of foam or something
to basically, I mean, what you need to do is reduce the -sorry, increase the
time over which the energy of the
frames can be absorbed over. So for example if
you wrapped the entire beam in metre thickness of foam in all directions then as
the
frame--
Well any sort of absorbing material to absorb the energy of the incoming
frames. I mean, what - the problem is that the frames are
very hard and the beam
is very hard and that collision causes the fracture. If you can make it softer
then that may help but I think
you would have to go to, you know, we're talking
ridiculous levels I would imagine of surrounding foam in order to make the thing
survive--
Q. What about--
A. --that sort of collision.
- The
appellant also sought to rely on Mr Mitchell's qualifications and experience as
a dogman, as well as his conduct immediately preceding
the accident to make out
the statutory defence. In oral submissions below the appellant had contended
that Mr Mitchell had failed
to allow sufficient clearance with respect to the
lift he was controlling, and given Mr Mitchell's considerable expertise in that
area the appellant was entitled to rely, and had relied, on that expertise
expecting that he could, and would, undertake the task
safely. During the course
of the submission, the appellant also adverted to the evidence of Mr Bleasdale.
In submissions on appeal
Mr Bleasdale's evidence was set out in detail. It dealt
with the duties and responsibilities of a dogman. Mr Bleasdale emphasised
that a
dogman was not permitted, "to get in under the load", or physically handle the
load. The evidence of Mr Martin on this issue,
which the CIM accepted, was that
Mr Mitchell at the time of the accident was located next to the first load of
timber frames which
had been deposited in front of the beam and he was
endeavouring to square up the load by grabbing it as it had began to twist.
- None
of these matters were the subject of consideration by the CIM when addressing
the defence provision under s 28(a). Nor was the
reasonable impracticability of
providing relevant warnings, information, or conducting an induction, or
ensuring that no one accessed
the area beneath the beam, the subject of separate
consideration by the CIM (the measures listed in Particulars 2, 3 and 4). The
allegations in those particulars were not referred to specifically by the CIM in
his consideration of the defence except insofar
as his Honour made findings with
regard to whether it was reasonably practicable for the appellant to have
arranged for supervision
at the site. According to the appellant, the task was
undertaken by experienced and expert personnel and an inference was available
that, "nothing could have been foreseen" by it that would have necessitated
expending time and resources or addressing any difficulties
with a view to
averting the risk.
- These
were matters necessary to be addressed so that proper consideration could be
given to whether the appellant had discharged its
statutory onus under s 28(a).
In saying this, we are mindful that the Local Court is a very busy jurisdiction
and it is not necessarily
incumbent upon its judicial officers to give full or
detailed statements of reasons in every decision. This observation was expressed
more fully in Chamberlain v MacLachlan [2003] WASCA 200 (29 August 2003)
by Miller J:
The reasons were short and there was only brief reference to the evidence,
but it was a case in a Court of Petty Sessions and I respectfully
adopt the
following observations of Malcolm CJ in R v Nevermann (1989) 43 A Crim R
347 at 350 in relation to the requirements of such reasons in the Court of Petty
Sessions:
It is not necessary for a full or detailed statement of reasons to be given
in every case. This would not be practicable in a busy
court such as the
District Court and it would be even less so in a court of petty sessions. The
imposition of such a requirement
in every case would cause delays in the
administration of justice. The reasons may be stated shortly, without being
developed in
any detail.
- Nevertheless,
the CIM was required to give adequate reasons for rejecting the appellant's
defence under s 28(a). The importance of
this was highlighted in St Hilliers
at [22] where the Full Court said:
The defences afforded by s 28 are vital to balance the absolute criminal
liability created by the Act and their significance should
not be undervalued.
They must be given due consideration, and, should the court come to the view
that they do not apply, adequate
reasons must be given.
Conclusions and orders
- The
course of the first instance proceedings relating to Particular 1 and the CIM's
failure to give adequate reasons constituted a
denial of procedural fairness
which warrants appellate intervention. Accordingly, we would grant the appellant
leave to appeal, if
it is required, and allow the appeal in relation to the
judgments and orders of the CIM of 29 October 2007, 28 May 2008, and 12 November
2008. The appeal with regard to the CIM's decision of 22 June 2007 will be
dismissed.
- On
the question of appropriate relief the appellant submitted that this Court is
not in a position to impose its own views because
of a significant body of
evidence that was either not evaluated or not properly evaluated. We note that
the Full Court in St Hilliers , having found that the learned Magistrate
below failed to give proper consideration to St Hilliers' submissions concerning
the availability
of defences under s 28 proceeded to determine the issue without
recourse to a retrial: at [22]-[23]. The Full Court's decision to
proceed to
determine the issue for itself was based upon the uncontentious nature of the
factual findings at first instance and the
fact that St Hilliers had expressed a
preference for this mode of disposition of the appeal.
- In
its amended application to this Court the appellant claims the following
alternative relief:
2A That the Court remit the proceedings to the Court below for a further
hearing according to law.
- In
the present proceedings, given the appellant's view that the Court is not in a
position to determine the matter for itself, we
do not propose to adopt the
course taken by the Full Court in St Hilliers . As for whether there
should be a re-hearing, there are several factors that militate for and against
this as a form of appropriate
relief.
- The
offence occurred on 26 October 2004, a delay in excess of six years. Any
re-hearing of the matter will occasion further delay,
although perhaps not so
substantial as to militate against orders made for a re-hearing.
- The
case against the appellant appears to be relatively strong. A key factor in
assessing whether a matter should be referred back
for a re-hearing is the
"public interest in the due prosecution and conviction of offenders": R v
Taufahema [2007] HCA 11; (2007) 228 CLR 232 at 254.
- A
factor against referring the matter back concerns the necessity to observe
procedural fairness not only in the trial process but
also with regard to the
question of appropriate relief: Lorenzo and Santos at [91]. In these
proceedings the appellant sought, unsuccessfully, on several occasions to obtain
further particulars of the allegations
in the CAN. As we earlier observed, the
failure on the part of the respondent to provide the particulars placed the
appellant at
a significant disadvantage in meeting the respondent's case and
this disadvantage constituted a procedural unfairness in the conduct
of the
proceedings below.
Orders
- Taking
into account these factors, we make the following orders in disposing of the
appeal:
(1) Leave to appeal, if required, is granted.
(2) With regard to the Decision of Chief Industrial Magistrate Hart of 22
June 2007, the appeal is dismissed.
(3) Otherwise, the appeal is allowed and the conviction and sentence of the
appellant by Chief Industrial Magistrate Hart of 29 October
2007, 28 May 2008
and 12 November 2008 are set aside.
(4) The matter is remitted to the
Local Court to determine according to law.
(5) The respondent shall pay
the appellant's costs of the proceedings below and the appeal.
**********
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