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Simpson Design Associates Pty Ltd v Inspector Ching [2011] NSWIRComm 7 (25 February 2011)
Last Updated: 15 March 2011
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Industrial
Relations Commission
New South Wales
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Case Title:
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Simpson Design Associates Pty Ltd v Inspector
Ching |
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Medium Neutral Citation:
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Hearing Date(s):
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Decision Date:
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Jurisdiction:
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Boland P at 1, Marks J at 127, Kavanagh J at 1 |
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Decision:
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1. The appeal is dismissed and the orders made by
Haylen J on 9 June 2010 are confirmed. 2. The stay orders made by Boland J,
President on 19 July 2010 in Simpson Design Associates Pty Ltd v Inspector
Ching [2010] NSWIRComm 98 are dissolved. 3. The appellant shall pay the
respondent's costs of the appeal as agreed or assessed. |
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Catchwords:
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APPEAL - Occupational health and safety
prosecution - Prosecution under s 11 of the Occupational Health and Safety At
2000 - Appellant
had designed plant relating to a gate installed at a concrete
batching plant - Gate fell on person as she was assisting to manually
close
gate causing her fatal injuries - Plea of not guilty - Appellant found guilty at
first instance of breach - Fine imposed -
Whether primary judge erred in
admitting certain opinion evidence - Whether primary judge erred in placing
reliance on regulations
- Whether primary judge erred in treating the appellant
as though it was a designer of plant when it was asserted it was only a designer
of particular components for plant for a particular and limited purpose -
Whether the primary judge erred in failing to find the
appellant was not
culpable due to novus actus interveniens - Whether primary judge erred in
relation to the sentence imposed OCCUPATIONAL HEALTH AND SAFETY - Appeal
- Prosecution under s 11 of the Occupational Health and Safety Act - Fatal
injuries to a person
when a gate fell on her as she was assisting to manually
close the gate - Consideration of the duties of a designer under s 11 of the
Occupational Health and Safety Act 2000 - Whether primary judge erred in
treating the appellant as though it was a designer of plant when it was asserted
it was only a designer
of particular components for plant for a particular and
limited purpose - Whether the primary judge erred in failing to find the
appellant was not culpable due to novus actus interveniens - Whether primary
judge erred in relation to the sentence imposed BY MAJORITY APPEAL
DISMISSED - by Marks J dissenting, later acts of unidentified person constituted
a novus actus interveniens STATUTORY INTERPRETATION - Occupational health
and safety - Duties of a designer under s 11 of the Occupational Health and
Safety Act 2000 |
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Legislation Cited:
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Cases Cited:
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Texts Cited:
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"Chance Would be a Fine Thing: Proof of Causation and
Quantum in an Unpredictable World" Melbourne University Law Review [1999] MelbULawRw 24; , 23
Melb.U.L.REV. 557 by Professor David Hamer "Clean Water and Muddy Causation:
Is Causation a Question of Law or Fact, or Just a Way of Allocating Blame?" by
Nicole Pasfield published
in Crim.L.R.1995, Sep, 683-694 Owning Outcomes: On
Intervening Causes, Thin Skulls, and Fault-undifferentiated Crimes - 11 Can.J.L
& Juris 89"Causation, Thin Skulls and Equality" (11 Can.J.L. & Juris
115 |
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Category:
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Parties:
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Simpson Design Associates Pty Ltd
(Appellant) Inspector Barnabas Ching (Respondent) |
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Representation
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COUNSEL: Mr I M Neil SC with Mr P C Moorhouse
of counsel (Appellant) Mr S Crawshaw SC with Ms P McDonald SC
(Respondent) |
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- Solicitors:
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SOLICITORS: Kennedys Lawyers
(Appellant) WorkCover Authority of New South Wales (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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JUDGMENT OF
BOLAND J, PRESIDENT AND KAVANAGH J
| 1 | Simpson Design Associates Pty
Ltd ("SDA" or "the appellant") had designed plant relating to a gate ("the gate
plant") installed at
a concrete batching plant operated by Hy-Tec Industries Pty
Ltd ("Hy-Tec") in Mascot. On 14 October 2003, whilst Jason Sheath and
Melissa
Maybury were trying to close the gate manually, the western leaf of the west
gate passed through the midpoint of the gate
opening and out of its portal,
falling on Ms Maybury and causing her fatal injuries.
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| 2 | Proceedings were brought
against SDA by the respondent, Inspector Barnabas Ching of the WorkCover
Authority of New South Wales, under
s 11(1)(a) of the Occupational Health and
Safety Act 2000 ('OHS Act'). It was alleged that in designing the gate plant
the appellant failed to ensure it was safe and without risk to health
when
properly used. |
| 3 | Haylen J heard the
prosecution. The appellant had pleaded not guilty and sought that the charges be
dismissed. In Inspector Ching v Simpson Design Associates Pty Ltd [2009]
NSWIRComm 213 (" Simpson (No 1) "), his Honour found the appellant guilty
of a breach of s 11(1) of the OHS Act as particularised and in particular, by
its failure
to include in the design of the gate plant any or any adequate
devices to prevent the western leaf of the west gate falling during
manual
operation. In Inspector Ching v Hy-Tec Industries Pty Ltd [2010]
NSWIRComm 73 (" Simpson (No 2) "), Haylen J fined the appellant $185,000
plus costs. In this latter decision it is to be noted that Hy-Tec and Lejah Pty
Ltd ("Lejah")
were also fined in connection with what occurred on 14 October
2003. Lejah was the company that designed and supplied the general
mechanical
equipment for the concrete batching plant and that company fabricated and
supplied the steel components and running gear
for the gates.
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Section 11 of the OHS Act
| 5 | Section 11 of the OHS Act
provides: |
11 Duties of designers, manufacturers and suppliers of plant and substances
for use at work
(1) A person who designs, manufactures or supplies any plant or substance for
use by people at work must:
(a) ensure that the plant or substance is safe and without risks to health when
properly used, and
(b) provide, or arrange for the provision of, adequate information about the
plant or substance to the persons to whom it is supplied
to ensure its safe use.
(2) The duties under this section:
(a) apply only if the plant or substance is designed, manufactured or supplied
in the course of a trade, business or other undertaking
(whether for profit or
not), and
(b) apply whether or not the plant or substance is exclusively designed,
manufactured or supplied for use by people at work, and
(c) extend to the design, manufacture or supply of components for, or
accessories to, any plant for use by people at work, and
(d) extend to the supply of the plant or substance by way of sale, transfer,
lease or hire and whether as principal or agent, and
(e) extend to the supply of the plant or substance to a person for the purpose
of supply to others, and
(f) do not apply to a person merely because the person supplies the plant or
substance in the course of a business of financing the
acquisition of the plant
or substance by a customer from another person.
(3) In this section, manufacture plant includes assemble, install or
erect plant.
Regulation
84 Application
(1) This Division applies to the design of:
(a) plant for use at work, and
(b) plant affecting public safety.
(2) This Division applies to:
(a) plant designs, and
(b) unless the context otherwise requires alterations to plant designs,
that are commenced after the prescribed date.
...
86 Designer to identify hazards
A designer of plant must identify any foreseeable hazard that may arise from the
design of the plant and that has the potential to
harm the health or safety of
any person during the manufacture, installation, erection, commissioning, use,
repair, dismantling,
storage or disposal of the plant at a place of work or, in
the case of plant affecting public safety, at any other place at which
the plant
is located.
87 Designer to assess risks
(1) A designer of plant must assess the risk of harm to the health or safety of
any person arising from any hazard identified in
accordance with this Division
and, in particular, must:
(a) evaluate the likelihood of an injury or illness occurring and the likely
severity of any injury or illness that may occur, and
(b) identify the design requirements and any other actions necessary to
eliminate or control the risk.
(2) In carrying out a risk assessment for the purposes of this clause, a
designer of plant must take into account the following:
(a) the impact of the plant on the work environment in which it is designed to
operate,
(b) the range of environmental and operational conditions in which the plant is
intended to be manufactured, transported, installed
and used;
(c) the ergonomic needs of persons who may install, erect, use or dismantle the
plant;
(d) the need for safe access and egress for persons who install, erect, use or
dismantle the plant;
(e) any specific risk control measures required by this Regulation (including as
to manual handling, hazardous substances, dangerous
goods, and the working
environment).
...
89 Designer to control risks
(1) A designer must design plant so that risks associated with the manufacture,
installation, erection, commissioning, use, repair,
dismantling, storage and
disposal of the plant are eliminated or, if this is not reasonably practicable,
are controlled.
...
95 Specifying work systems and operator competencies-particular risk control
measures
A designer of plant must specify systems of work or operator competencies if
they are necessary for the safe manufacture, installation,
erection,
commissioning, use, repair, maintenance, dismantling or disposal of plant.
...
96 Designer to provide information
(1) A designer of plant must provide other persons who have responsibilities
under this Regulation with all available information
about the plant that is
necessary to enable the other persons to fulfil their responsibilities with
respect to the following:
(a) identifying hazards,
(b) assessing risks arising from these hazards,
(c) eliminating or controlling those risks,
(d) providing information.
(2) Without limiting subclause (1), a designer of plant must ensure that a
person who manufactures the plant is provided with sufficient
information to
enable the plant to be manufactured in accordance with the design specifications
and, as far as practicable, with
information relating to the following:
(a) the purpose for which the plant is designed,
(b) testing or inspections to be carried out on the plant,
(c) installation, commissioning, operation, maintenance, inspection, cleaning,
transport, storage and, if the plant is capable of
being dismantled, dismantling
of the plant,
(d) systems of work necessary for the safe use of the plant,
(e) knowledge, training or skill necessary for persons undertaking inspection
and testing of the plant,
(f) emergency procedures
(3) A designer of plant who manufactures the plant must ensure that the
information specified in subclause (2) (a) to (f) inclusive
is provided to any
person who obtains the plant for the person's own use or who supplies the plant
to others.
...
97 Designer to obtain information
(1) A designer of plant must obtain such available information as is necessary
to enable the designer to fulfil the designer's responsibilities
under this
Regulation with respect to the following:
(a) identifying hazards,
(b) assessing risks arising from those hazards,
(c) eliminating or controlling those risks,
(d) providing information.
(2) If a designer has a contract with an employer to design a specific item of
plant, the designer must obtain from the employer
any relevant information about
matters with respect to the plant that may affect health and safety at the place
of work.
The charge
| 7 | Inspector Ching alleged that
between 3 September 2001 and 24 June 2002, the company designed plant in the
course of a trade, business
or other undertaking, namely plant related to gates
(referred to in the charge as "gate plant") for use by persons at work which
it
failed to ensure was safe and without risk to health when properly used. The
particulars of the charge were: |
(1) The defendant designed the gate plant by making and/or issuing drawings of
the gate plant.
(2) The issued drawings were contained in Drawing no 1047-S4.00 Revisions D and
E.
(3) The defendant designed the gate plant for the concrete batching plant being
constructed by Bonfoal Pty Ltd at 294-296 Coward
Street Mascot, in the State of
New South Wales ( premises ).
(4) During 2003 the concrete batching plant was operated by Hy-Tec Industries
Pty Ltd ( Hy-Tec ) at the premises.
(5) The gate plant was installed on the western side of the premises ( west
gate ).
(6) The gate plant was used by employees of Hy-Tec at work.
(7) At all material times Mr Jason Sheath was an employee of Hy-Tec.
(8) At close of business, if Mr Sheath was the last employee at the premises,
part of his duties included closing the gates to the
premises.
(9) At the close of business on 14 October 2003, Mr Sheath attempted to close
the western leaf of the west gate. The electronic system
to close the west gate
failed to operate and Mr Sheath began to close the western leaf of the west gate
manually.
(10) Mr Sheath was assisted in closing the western leaf of the west gate
manually by Ms Melissa Maybury.
(11) Whilst Mr Sheath and Ms Maybury were trying to close the western leaf of
the west gate manually, the western leaf passed through
the midpoint of the gate
opening and out of its portal, falling on Ms Maybury and causing her fatal
injuries.
(12) There was a risk of the western leaf of the west gate falling on either Mr
Sheath or Ms Maybury.
(13) The gate plant was not safe and without risks to health when properly used.
(14) The defendant failed to include in the design any or any adequate devices
to prevent the western leaf of the west gate falling
during manual operation.
(15) By reason of the defendant's omissions, persons were at risk of being
injured (including fatally injured) whilst they were operating
the west gate
manually.
(16) On 14 October 2003 Melissa Maybury was fatally injured and Jason Sheath was
placed at risk of injury as a result of the defendant's
omissions.
Background facts
| 8 | Haylen J set out the facts of
the matter at [6] noting that they were substantially agreed. The appellant also
helpfully submitted
a summary of the facts. It is unnecessary to repeat all of
those facts so, at this stage, we shall only refer to those that are necessary
to understand the context in which this appeal is taking place:
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(a) Hannas Civil Engineering Pty Ltd (" Hannas ") was appointed as the project
manager for the construction of the concrete batching
plant. Mr Peter Twomey was
the project manager from August 2001 onwards. Mr Twomey was employed by LSM
Projects Pty Ltd (" LSM" ),
but in practice represented Hannas as a result of a
contract between LSM and Hannas under which LSM contracted with Hannas to
provide
services to Hannas to enable it to carry out its construction management
role.
(b) The construction of the plant included three sets of bi-sliding metal gates
on Coward Street: one on the eastern side, one on
the western side and a centre
gate in the middle between the east gate and the west gate ("the gates"). Part
of Hannas' duties included
acting as the project manager for the design,
construction and installation of the steel gates located on Coward Street.
(c) Each set of gates consisted of two gate leaves that opened in opposite
directions along a track through the tunnel of the support
portals. The gates
were fitted with motorised driving units with switches to open and close the
gates. The gates could also be operated
manually. The west gate was the largest
of the three gates and each gate leaf of the west gate weighed approximately
1340 kilograms.
The appellant notes that the gates were not constructed to be
operated manually and were locked in position once the motor was installed,
although the motor could be disengaged for manual operation.
(d) The brief from Hy-Tec in accordance with condition 102 of the Development
Consent was: "Provide a steel bi-fold gate system that
can be opened and closed
via digital key pads adjacent to the gate or overridden from the control room
together with electronic eyes
for closure".
(e) By letter dated 23 March 2001 the appellant originally tendered to Hannas to
provide structural design engineering services for
the concrete batching plant.
The gates were not part of the initial work for which the appellant was
contracted as set out in the
letter dated 23 March 2001.
(f) Damian Hadley, an associate director of the appellant, was employed by the
appellant as a structural engineer to perform structural
design and to
co-ordinate the day-to-day activities of the appellant. Mr Hadley was a
chartered professional engineer. Mr Hadley
was answerable to Andrew Simpson a
director of the appellant. Mr Hadley was the structural engineer who did most of
the initial work.
(g) The structural design for the steel gates and steel frames that supported
the gate was carried out later pursuant to an oral
brief together with some
drawings and written instructions from Mr Twomey. Mr Twomey says the design
brief was for the design to
be in accordance with the DA conditions and to do
the structural design for an electrically operated gate system. Mr Hadley said
that the design brief was to provide structural engineering services for the
design and documentation of the gates. There was no
specific brief to the
appellant for manual operation, a backup system or stops. Mr Hadley said that
the brief did not include the
mode of operation of the gate. However there was
no express prohibition on operating the gates manually.
(h) On 3 September 2001 SDA issued a further "fee proposal" for additional works
at the concrete batching plant, including "structural
steel gate design". On
about 12 November 2001, shortly after another meeting on 9 November 2001 at
which the gates had been discussed,
Mr Hadley sent a fax to Mr Twomey in which
he stated, in part:
With this in mind I propose to proceed with the structural design and specify
the track and rollers as proprietary items.
(i) Mr Hadley provided his first sketch of the structural elements of the gates
on 13 November 2001. Following a further sketch and
comments from Mr Twomey,
Revision A of the 'Miscellaneous Steelwork drawings' was issued to Mr Twomey on
about 19 December 2001.
That drawing showed, in addition to some steelwork
unrelated to the gates, the structural elements of the gates.
(j) Thereafter Mr Hadley provided further revisions of the same "Miscellaneous
Steelwork drawings", including Revisions D and E,
which were the focus of the
charge. Each revision of the drawing included the same structural elements of
the gates. Mr Hadley supervised,
approved and checked the drawings. Mr Twomey
provided some comments and alterations in respect of SDA's drawings. Revision E
was
issued to Mr Twomey on about 24 June 2002, that being the end of the period
to which the charge related. These structural drawings
contain the design that
it is alleged was unsafe.
(k) Gate stops were not incorporated in those drawings. No provision was made in
the design for the gates to be operated manually
or in the case of mechanical
failure. The design shown on SDA's Miscellaneous Steelwork drawings does not
address the issue of mode
of operation of the gates. The only reference to the
mode of operation of the gates is the note on the drawings, which refers to
the
need for coordination with the manufacturer of the gate motor.
(l) The design and construction of the gates ultimately involved the work of a
number of separate entities, appointed and acting
under the coordination and
direction of Hannas and in particular Mr Twomey. The following entities were
responsible for the design,
supply and installation of the major components of
the gates:
(i) SDA provided the structural design.
(ii) Lejah trading as Sunstate Consulting & Engineering (" Sunstate "), the
company which designed and supplied the mechanical
equipment for the concrete
batching plant generally, designed the wheels and rollers for the gates,
prepared the fabrication drawings
for the gates and supplied, delivered and at
least partly installed the gate steelwork.
(iii) Magic Door Industries Pty Ltd (" MDI ") supplied and installed the
operating equipment for the gates, including determining
the particular motor
and other operating equipment to be used.
(iv) Roofacade Pty Ltd (" Roofacade ") supplied and installed the cladding,
which was placed on the gate leaves.
(m) The fabrication drawings for the gates were completed by Sunstate by about 8
August 2002. Sunstate's fabrication drawings showed
the specification of the
type of wheels and type of rollers to be used in constructing the gates, the
number and positioning of the
wheels and rollers and the design of the brackets
for each of the wheels and the rollers. Sunstate's fabrication drawings did not
provided for gate stops. Sunstate followed the appellant's design in this
respect. The appellant noted that Keith Rowe, the Estimator
for Sunstate stated
that SDA's Miscellaneous Steelwork drawings did not refer to stops, and Mr Rowe
never discussed that matter with
Mr Twomey. Mr Rowe refers to those drawings as
only "structural" outline drawings. There was no evidence that Mr Rowe was
required
to follow SDA's Miscellaneous Steelwork drawings in this respect.
(n) Sunstate then arranged for the fabrication of the steelwork for the gates,
and for it to be delivered to the Mascot site. During
October and November 2002
the gate steelwork was installed.
(o) MDI commenced installing the gate operating equipment on 12 November 2002.
On the afternoon of 12 November 2002 one of the gate
leaves of the centre gate
moved through its portal and fell, narrowly missing one of MDI's installers.
(p) As a result of that incident it became apparent to Sunstate and Mr Twomey
that physical stops were required on the gates. MDI
said that they would not go
back to the site until adequate stops were installed on the gate leaves.
(q) On 14 November 2002, and again on 16 December 2002, MDI sent Mr Twomey a
facsimile strongly recommending that physical stops
be installed, on both
occasions expressly referring to the possibility of a fatality if that did not
occur.
(r) Shortly after the near miss on 12 November 2002 some stops were fixed to
some of the gate leaves, including apparently the bolted
stop, which was on the
western leaf of the west gate when it fell on 14 October 2003. SDA was not asked
to, and accordingly did not,
play any part in the specification, design or
installation of the bolted stop.
(s) By December 2002 the construction of the concrete batching plant was
substantially finished and Hy-Tec had entered into possession
of the premises.
After this time the gates had to be operated manually at times. Throughout 2003,
failures in the automatic electronic
functioning of all the gates, but most
frequently, the west gate, were a regular occurrence. Hy-Tec employees closed
the gates manually
frequently and this required more than one employee as the
west gate in particular was heavy. The usual practice with the west gate
was to
close the eastern leaf first.
(t) On 14 October 2003 a tragic incident occurred in which one of the gates fell
on Melissa Maybury resulting in her death (fatal
incident). Jason Sheath was the
last employee of Hy-Tec present at the site and was responsible for closing the
gates to the site.
His friend Ms Maybury arrived at the concrete batching plant
by car to transport him home. She had done this on previous occasions.
(u) Mr Sheath was attempting to close the bi-sliding metal gate on the western
side of the premises. Mr Sheath was initially attempting
to close the west gate
electronically. The electronic system used to close the gates failed. Mr Sheath
rang his supervisor Mr Hanna
to ask him for the pin code for the drivers' room
because the drivers had forgotten to close the room gate and told Mr Hanna he
was
having problems closing the gate and that he would get back to Mr Hanna with
how he went with closing the gate.
(v) Mr Sheath disengaged the motor and commenced to close it manually. Mr Sheath
initially tried to close the western leaf of the
west gate. He experienced
difficulty in moving the western leaf by himself. Mr Sheath had previously had
assistance in closing the
gate manually. Ms Maybury came to the assistance of Mr
Sheath in manually closing the gates.
(w) At the time that Mr Sheath was attempting to close the western leaf of the
west gate, the eastern leaf was still in the open
position. While Mr Sheath and
Ms Maybury were attempting to close the western leaf manually, as they
manoeuvred the western leaf,
the front edge of the gate leaf passed the midpoint
of the driveway. It moved out of the supporting portals and fell onto Ms Maybury
and caused her fatal injuries.
(x) The only available inference from the evidence is that there were only ever
three stops attached to the six leaves of the gates
at the concrete batching
plant. The factual inspections made after the fatal incident show that no
further stops were installed after
November 2002 and that the western leaf of
the west gate still had the bolted stop installed in November 2002. The bolted
stop was
grossly inadequate and incapable of providing the mechanical strength
required to limit the travel of the gate, whether that travel
was driven by the
normal power system, electric motor and gear box that drove the gate, or through
the manual operation of the gate
leaf.
(y) Subsequent to the fatal incident, Mr Hadley on behalf of SDA designed gate
stops, which were approved by Andrew Simpson. The
design drawings were forwarded
to Mr Proctor of Hy-Tec by Mr Hadley from the appellant on 15 October 2003. The
entire work of designing,
fabricating and installing stops in both the opening
and closing positions took just one day. Inspector Ching photographed these
stops on 24 October 2003. The appellant noted that there was no evidence of how
long was required for those stops to be fabricated
and installed.
(z) In designing the stops after the fatal incident, Mr Hadley was able to
undertake relevant calculations to undertake the task
such as the calculation of
the load. As the gates could be operated manually as well as electronically, Mr
Hadley determined the
load that someone could push on the door manually and from
that he allocated the velocity and calculated an impact load.
First instance decision
| 9 | In Simpson (No 1),
Haylen J first considered the construction of s 11 of the OHS Act and in
doing so relied on the judgment of the Full Bench in WorkCover Authority of
New South Wales (Inspector Mulder) v Arbor Products International (Australia)
Pty Ltd [2001] NSWIRComm 50; (2001) 105 IR 81 and the judgment of the High
Court in Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR
304. His Honour found Arbor Products instructive (at [39]):
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On the approach dictated by the Full Bench in Arbor Products , the design
of the core components of the gate had to be safe (in the sense that safety was
assured) for the operation of the gate
by the time the defendant had issued the
plans for construction. Mr Hadley's evidence was that he had not turned his mind
to what
use the gate would be put; he knew it would be operated by motor but
even then his task was to be undertaken without regard to the
motor. On these
bare facts and applying Arbor Products , the design was unsafe because of
the possibility, not considered or addressed by the defendant, that the gate
leaves could be manually
moved beyond the support of the portal and could fall.
The mere fact that it was contemplated that the gate would be motorised did
not,
without more, eliminate the real possibility that the gate would also be
manually operated and could fall when manually operated.
Applying Arbor
Products leads to the conclusion that the defendant was guilty of a breach
of s 11(1) of the Act.
| 10 | In relation to Slivak,
his Honour's referred to the majority judgment of Gleeson CJ, Gummow and
Hayne JJ (at [37]) where it was stated: |
The appellants stressed the presence of the term "must ensure". However, the
requirement is one of ensuring safety "so far as is
reasonably practicable". The
requirement applies to matters which are within the power of the designer to
perform or check, such
as ascertaining what use the structure will be put to,
what loads it will experience when being built and the nature of the location
in
which it is to be erected. This is in contrast to the matters that would be
forced within the ambit of this requirement were the
submissions for the
appellants accepted; for then a designer would be required to take account of
factors outside the power of the
designer to control, supervise or manage, such
as the procedures to be adopted during construction.
| 11 | In Simpson (No 1) at
[17] Haylen J observed: |
Nevertheless, in Slivak, the High Court stated that it was within the
power of the designer to perform certain tasks in ensuring safety such as
ascertaining
the use of the structure, what loads it would experience when being
built and the nature of the location in which it was to be erected
- the
designer would not be required to take into account factors outside the power of
the designer to control, supervise or manage
such procedures to be adopted
during construction. It is unnecessary for the purposes of the present case to
establish the outer
limits of the operation of s 11 but it may be said that the
limited duties of the designer under the South Australian Act [ Occupational
Health Safety and Welfare Act 1986) would also apply under s 11.
| 12 | The findings of the primary
judge may be summarised in the following way: |
(a) in designing the structural elements of the gate, the appellant was
designing 'plant' for use by people at work (at [18]);
(b) the appellant was involved in the engineering design of plant, namely, the
gates (at [19]);
(c) the gate plant was designed in the course of trade, business or other
undertakings by the appellant (at [19]);
(d) the appellant knew the weight of the gates in their proposed design and knew
that those gates would run on wheels within tracks
to be laid by others. The
appellant knew the gate would be operated by an electric/electronic motor and
had information available
as to the mode of operation of at least one brand of
such a motor. Mr Hadley had inspected gates and motors at other premises (at
[27]);
(e) in relation to the question whether the appellant could ignore the use to be
made of the gates and its method of operation and
simply rely upon its perceived
limited role as the structural engineering designer of the structural elements
of the gates, leaving
it to others to consider how the gate may be safely
operated, the answer lies in the obligations imposed upon the appellant as a
designer of the gate or a core component of the gate (namely, its structural
elements) by the Occupational Health and Safety Regulation (at [28]);
(f) in relation to the operation of cl 86 of the Regulation, s 11(2)(c) of the
OHS Act makes it clear that the duties under s 11
extend to the design of
components or any plant for use by people at work. To the extent that it may be
said that the structural
engineering elements of the gate were not the whole
gate, those structural elements were a significant component of these gates and
indeed, were a core component of the gate plant. The other components were
primarily directed to the metal sheeting covering the
steel framework of the
gate and other components essential for the operation of the gates such as
wheels, rails and other running
gear, including the motor (at [29]);
(g) under cl 86, the appellant designer had to identify any foreseeable hazard
arising from the design of the plant that had the
potential to harm the health
or safety of any person during the use of the plant. This provision would then
require the appellant
to satisfy itself as to the motorised operation of the
plant and whether it was capable of permanently locking or stopping the gate
plant so that each leaf could not pass beyond the supporting portal and thereby
become unsupported and likely to fall, causing serious
injury to any person in
the vicinity (at [30]);
(h) that the motor operating the gates might fail, was a foreseeable hazard and
the simple remedial step to guard against the leaves
of the gates being manually
operated and pulled beyond the support of the portals was to install stop
devices. It was within the
professional structural engineering capacity of the
appellant to design such stops so that they would be effective and as it turned
out, that is precisely what the appellant did after the event in relation to
these gates (at [31]);
(i) the appellant's obligation as the designer of the core component of the gate
was extended by cl 87 of the Regulation. The appellant,
as designer of the core
component of the gate plant, had to undertake a risk assessment if its
investigations indicated the possibility,
from time-to-time, of manual operation
of the gates. The gates needed support to prevent them from falling: the
appellant regarded
it as part of its professional practice as structural
engineers to design the portals to support the leaves of the gate while they
moved back and forth. It was a short step further to consider what support was
available for the gates should they be inadvertently,
carelessly or deliberately
manually operated. A risk assessment conducted in those circumstances again
would yield the simple solution
of installing stop points to prevent the gates
from being drawn beyond the support of their portal. Considering the size of the
gates
any such risk assessment would readily come to the conclusion that, if the
leaves of the gate did travel beyond the support of the
portal (the hazard),
they were likely to fall and anybody in the vicinity of the fall area (such as a
person manually operating the
gate) would be likely to suffer serious, if not
fatal, injuries (the risk) (at [32]);
(j) clause 89(1) of the Regulation imposes a duty upon a designer of plant to
design that plant so that risks associated with the
use of the plant are
eliminated and if not reasonably practicable to eliminate those risks, to ensure
those risks are controlled.
In designing these gates and the portals to support
them, the designer also had to consider what support would be present for the
gates if, from time-to-time, the motor or power supply failed or for any other
reason, manual operation was possible. Once manual
operation of the gates was
possible because of the range of movements permitted by the motor, then the
designer had to give consideration
to how the gates were to be supported or how
to prevent them from travelling beyond the support of their portals. Any such
risk had
to be eliminated or, if not able to be eliminated, had to be controlled
(at [33]);
(k) clause 95 of the Regulation requires a designer of plant to specify systems
of work if they are necessary for the safe use of
the plant. Under this clause
it was open to the designer to specify that a motor was to be used that did not
allow for manual operation
or, if a motor was chosen that allowed for manual
operation, then to specify a system of work that would allow for the safe
operation
of the gates. It is likely that, had the appellant given consideration
to cl 95 of the Regulation, it would not have ventured into
the area of laying
down a safe system of work for the operation of the gates by specifying the
minimum number of persons required
to support the gate during manual operation
but rather, having considered the terms of cl 95, would revert to including an
instruction
with the drawings that if manual operation was to be allowed, then
stops would have to be included for the gate leaves (at [34]);
(l) the appellant failed to act in accordance with the obligations imposed upon
it as a designer by the various provisions of the
Regulation that have been
identified. These clauses of the Regulation identify the many ways in which the
obligation in s 11(1) of
the OHS Act can be met. To the extent that s 11(2)(c)
extends the duty under s 11(1) to the design of components for any plant for
use
by people at work, cl 7(2) of the Regulation provides that ss 11(2) and (3) of
the OHS Act apply to the duties under the Regulation
of designers of plant for
use by people at work. The appellant also failed to take the steps referred to
in the evidence of Mr Simpson
and Mr Garg. In these various ways the appellant
is in breach of s 11(1) as particularised by the respondent (at [37]);
(m) the appellant had contended that because Mr Simpson was not a structural
engineer but a mechanical engineer, he could not give
evidence as to the scope
of duties and responsibilities of a structural engineer. Haylen J found Mr
Simpson did not give his opinion
based solely on his specialist knowledge as a
mechanical engineer but spoke of his knowledge of the work of professional
engineers
generally and in particular, in relation to his specialised field of
study in aspects of design and risk assessment in the engineering
field. Mr
Hadley was described as a "chartered professional engineer" as well as being a
"structural engineer". It was in this context
that Mr Simpson expressed the view
that, in effect, in providing the drawings to Hannas the appellant had to
undertake a "what if?"
assessment having regard to the fact that the motor and
the nature of the motor to be used to operate the gate had not been identified
on the plans and were to be externally provided. That "what if?" analysis had to
take into account the possibility that the operation
of machines or electricity
supply could be interrupted and the gates would have to be manually operated. If
that occurred there was
nothing to stop the leaves of the gate travelling beyond
the support of the portal and the simplest and most straightforward solution
was
to specify in the plans a requirement to install suitable stops. Mr Simpson's
"what if?" analysis is, in effect, another name
for a risk analysis, something
that the clauses of the Regulation contemplated should take place in the design
of plant for use at
work (at [42], [43]);
(n) the appellant had contended that a person who designs plant cannot be said
to have failed to ensure the plant is safe for use
within the meaning of s
11(1)(a) of the OHS Act until the last opportunity for it to do so had passed.
In this case, when the charge
period had expired, the appellant expected to have
an opportunity to complete its work and had no reason to suspect that it would
not be given that opportunity. The respondent had submitted it mattered not that
the charge period ended before the final design
of the gates was settled, as
designs by their very nature may be preliminary. The respondent referred to
dictionary definitions of
"design" to include the preparation of preliminary
sketch plans. It was submitted that, to the extent the appellant's design was
preliminary in the sense that other work had to follow, it nevertheless set the
parameters for all the work that followed. Mr Simpson's
evidence was that the
design and drawings had been created for the purpose of the eventual fabrication
and erection of the gates
and the basic design drawings represented what was
eventually made. Indeed, the scope of works given to Sunstate and MDI required
those contractors to follow the drawings, which were those issued by the
appellant. Significantly, the respondent pointed out that
the appellant's final
drawing carried the notation "issued for construction". Mr Hadley's evidence was
that notation meant that the
drawings "were appropriate for construction of the
project". This was consistent with Mr Simpson's evidence that, except for the
detail, the notation displayed an intention that the design was complete. The
force of the submissions made by the respondent are
accepted in relation to this
aspect of the case and the appellant's submission that, on this basis, the
charge be dismissed, is rejected
(at [46]-[49]);
(o) the appellant had submitted that the risk of the west gate falling on a
person or employee whenever the gate was manually used
because a substantial
travel limiting device was not installed did not exist until the period when the
gates were in use up to and
including the accident in mid-October 2003. During
that period the actual risk was that the gates would fall because the stop that
had been installed immediately before the gates were commissioned for use was
inadequate. The appellant had submitted it had absolutely
no part in the design
of that stop and there was no suggestion that the appellant's design had any
causal connection with the inadequacy
of that stop. Accordingly, there was no
connection between the risk that actually existed up to and on 14 October 2003
and the appellant's
design. The charge under s 11 centres upon its design and
the omission of such a travel limiting stop. In answer to this submission,
Haylen J found that the risk to health and safety followed from adopting this
design in the fabrication and installation of the gates.
In relation to the
designer's duty it mattered not that someone else designed and installed an
inadequate stop after the appellant's
plans were issued for construction. That
event merely gave rise to the possibility of a breach by another entity. In
addition, his
Honour observed that the respondent pointed out that the
inadequate stop that had been installed was a consequence of the omission
in the
appellant's design and its failure to specify an appropriate travel-limiting
device such as a stop. If such a device had been
included in the design prepared
by the appellant, then the occasion for the installation of an inadequate
travel-limiting device
by others would not have arisen. It was submitted that
this failure was a substantial or significant cause and/or materially
contributed
to the risk of injury to persons at work. On either approach, his
Honour held the appellant did not establish a case why the charge
should be
dismissed. The appellant's argument in relation to this matter also ignores the
different period particularised in the
charge and the nature of the charge
particularised (at [50]-[51]);
(p) the s 28(a) defence is not established (at [52]);
(q) the s 28(b) defence is not established (at [53]).
| 13 | In relation to sentencing, in
Simpson (No 2) , Haylen J considered not only SDA, but also Hy-Tec and
Lejah (or Sunstate). The latter two defendants had entered pleas of guilty.
In
relation to SDA his Honour said at [45]: |
[45] These submissions for SDA pay insufficient attention to the kernel of the
Court's liability judgment that, despite SDA's practice
or wider industry
practice, it could not go about the task of designing the structural steel
elements of the gate without considering
the use to which the gate would be put
and that clauses of the Regulation required the designer to identify foreseeable
hazards that
may arise from the design of the plant in, amongst other things,
its use. Although SDA has placed a large amount of evidence before
the Court on
the question of sentence, no explanation has been proffered as to how SDA
overlooked the requirements of the Regulation.
It was an agreed fact and it was
Mr Hadley's evidence that he had attended another premises to investigate the
operation of a large
sliding gate including conducting an examination of a
motor, noting that it was electronically driven. That action by Mr Hadley shows
that he was not oblivious to the use to be made of the gate of which his
structural steel design was an integral part. While Mr Hadley
understood that a
motor would control the operation of the gates, Mr Hadley had a document in his
brief showing that MDI motors allowed
manual operation and in May 2002, before
SDA had completed the design, MDI was given the contract to provide the motor.
No enquiry
was made by or on behalf of SDA about the final motor or the motor
options that were available from MDI and evidence from MDI's installation
manager was that the motors always allowed for manual release. While SDA has
strongly contended that its culpability is at a relatively
low level compared to
others with duties in relation to the design, manufacture and operation of these
gates (matters to which the
Court will turn in due course), the circumstances of
the matter require a finding that, in the case of SDA, this was a serious
breach.
| 14 | His Honour addressed the
principle of parity in considering the relative culpability of the defendants.
At [77] his Honour stated:
|
[77] What then can then be said about the relative culpability of the three
defendants? Firstly, Hy-Tec is charged under a different
provision and the
circumstances relating to the charges of SDA and Lejah focus on different
periods. In SDA's case the charge is
in relation to design and in Lejah's case,
in relation to manufacture and the provision of information. The common thread
is that
they all had an obligation to consider the manual operation of the gates
and the risk that might attend such an occurrence. The Court
is unable to accept
the submission for SDA that, because it was at the beginning of the process,
others behind it should have picked
up the risk associated with manual
operation: similarly, neither can Hy-Tec make good its position that it came at
the end of the
line and many others before it should have identified the risk
associated with manual operation. All defendants owed a similar obligation
to
protect against the identified risk. These circumstances do not persuade the
Court that, as a result, the culpability of SDA and
Lejah are reduced. As
previously commented upon, neither SDA nor Lejah have explained how it was that
they failed to consider the
operation of the gate as required by the Regulation.
Hy-Tec had the operation of the gate plant after it was commissioned and was
aware that the motor was failing on a regular basis and that manual operation
was necessary: it was aware that temporary stops had
been installed but caused
no investigation of their adequacy. When these matters are considered, the Court
is unable to detect any
appreciable difference in the culpability of any of the
defendants.
| 15 | Haylen J then proceeded to
consider the subjective factors relevant to each of the defendants and also
victim impact statements tendered
in the SDA proceedings. As we earlier noted,
SDA was fined an amount of $185,000 plus costs. Having regard to, inter alia
, the principle of totality and the pleas of guilty, his Honour fined Hy-Tec
$67,500 for each of two offences under s 8(1) and s 8(2)
of the OHS Act and
Lejah was fined $77,500 for each of two offences under s 11(1)(a) and s 11(1)(b)
of the OHS Act. |
Grounds of appeal
| 16 | The grounds of appeal were as
follows: |
In relation to liability:
1. The primary judge erroneously admitted the opinion evidence of Mr Colin
Simpson (" Simpson ") as to what the appellant, as a professional
engineer and/or a structural engineer, could and should have done to comply with
the
duty imposed by s.11(1)(a) of the Act, in that (a) insofar as Simpson's
opinion evidence related to professional engineering, it
was irrelevant, and (b)
insofar as it related to structural engineering, Simpson was not qualified to
give it.
2. In the alternative to 1, the primary judge erred in giving any significant
weight to Simpson's opinion evidence in determining
what the appellant, as a
professional engineer and/or a structural engineer, could and should have done
to comply with the duty imposed
by s.11(1)(a) of the Act.
3. The primary judge erred in giving any significant weight to Mr Raj Garg's
opinion evidence in determining what the appellant,
as a professional engineer
and/or a structural engineer, could and should have done to comply with the duty
imposed by s.11(1)(a)
of the Act.
4. The primary judge erroneously used obligations imposed by the Regulations to
ascertain and determine the nature and content of
the duty imposed on the
appellant by s.11(1)(a) of the Act, and whether the appellant had failed to
comply with that duty, particularly
when the appellant had not been charged with
having failed to comply with the Regulations.
5. The primary judge erroneously treated the appellant as though it was a
designer of plant for the purposes of s.11(1)(a) of the
Act, when it (a) was
charged as, and (b) on the evidence was in fact, only a designer of particular
components for plant for a particular,
and limited, purpose.
6. Further to 5, the primary judge erroneously treated the appellant as though
it had designed the whole of the gate referred to
in the charge, when, as the
uncontested evidence showed, the appellant had been retained to, and did,
perform only the structural
steel design for the gate.
7. Further to 5 and 6, the primary judge erroneously failed to have any, or
sufficient, regard to, or give effect to, the limits
of the design that the
appellant was retained to, and on the evidence did in fact, undertake as a
structural engineer.
8. The primary judge erroneously found that the appellant had failed to ensure
that the so-called "gate plant" that it designed during
the period to which the
charge related (" the charge period ") was safe for use when, as the
evidence showed, as at the end of the charge period the appellant contemplated
that it would have
the opportunity to make further contributions to the design
of the "gate plant", but was denied the opportunity to do so by no fault
of its
own.
9. In the alternative to 5, 6, 7 and 8, the primary judge erroneously failed to
find that the circumstances referred to in 5, 6,
7 and 8 gave rise to a defence
under s.28 of the Act.
10. His Honour erred in finding the offence as charged made out in circumstances
where, contrary to the particulars of the charge,
the risk alleged as part of
that charge did not exist on 14 October 2003, or at any other material time.
In relation to sentence:
11. The primary judge erroneously failed to have any or sufficient regard in
determining the appropriate penalty to
(a) the effect on the objective seriousness of the appellant's offence of the
contribution made by other entities to the relevant
risk; and
(b) the justifiable sense of injustice that the appellant was entitled to feel
in circumstances where other entities which were found
to bear significant
culpability for the risk to which its charge related were not prosecuted.
12. The primary judge erroneously failed to have any or sufficient regard in
determining the appropriate penalty to the evidence
which demonstrated that, in
acting in the manner found in the liability judgment as giving rise to an
offence, the appellant was
acting in a manner consistent with the usual practice
of structural engineers operating as part of a multi-disciplinary design team.
CONSIDERATION
| 17 | We shall address the grounds
of appeal in the order in which the appellant chose to address them.
|
Grounds 5 and 6 - the primary judge erred in treating SDA as the designer
of plant, rather than a component of plant, and as the designer
of the whole of
the gate
| 18 | The appellant submitted that
in reaching his conclusion that SDA was in breach of the duty imposed on it by s
11(1)(a) the primary
judge had conflated SDA's structural design of the gate
with the design of the gate as a whole. As a result, it was submitted, the
primary judge erred in proceeding on the basis that SDA's design extended beyond
the charge, and beyond what it was required to,
and did, design. In particular,
the requirement for, and design of, stops was not part of the component that SDA
was required to
design. |
| 19 | The appellant accepted that
the primary judge correctly described SDA as "designing the structural elements
of the gate'" and referred
to "the structural elements of the gate with which
the defendant was concerned". However, it was submitted that for the purpose of
considering the duty imposed on SDA by s 11(1)(a), Haylen J then proceeded on
the basis that SDA was the designer of the gate, including
the designer of the
way in which the gate operated. This was apparent, it was submitted, because the
primary judge referred to SDA
as "a designer of the gate or a core component of
the gate (namely its structural elements)" and thereafter his Honour referred on
a number of occasions to SDA as the designer of "the core component of the
gate", as though that was synonymous with "the basic design
of the gate as a
whole". |
| 20 | The appellant referred to:
|
(a) the evidence that SDA was engaged to provide the structural design
for the gates;
(b) the evidence that SDA's engagement was consistent with the usual and
expected role of a structural engineer and, in particular,
the evidence of Mr
Hadley and Mr Twomey that:
(i) the work of structural engineers was concerned with determining a structural
system and structural elements of that system that
will withstand the forces or
loads that will be applied to the proposed structure;
(ii) the problem which structural engineers set out to solve is the problem
posed by loads on structures; and
(iii) in particular structural engineers determine the most onerous load case
and design the structure to resist that load.
(c) the evidence that the design SDA provided accorded with the task it was
required to perform. It was submitted:
The Miscellaneous Steelwork drawings showed the structural elements for the
gates, and the structural system that SDA had designed
for the gates. Mr
Hadley's evidence was that those elements were the gate frames, the portals, the
holding down bolts and the concrete
foundations. To the extent that other
components were shown on those drawings, it was because they were indicative, or
because Mr
Twomey expressly requested that they be included.
Accordingly, the task that Mr Hadley performed in designing the "gate plant"
shown on SDA's Miscellaneous Steelwork drawings accorded
precisely with both the
task that SDA had been asked to perform, and with the role that would usually be
expected of a structural
engineer.
(d) the evidence of Mr Hadley that SDA's design task was independent of the
operation of the gate.
| 21 | The primary judge described
the appellant as the designer of the "core component of the gate": see
Simpson (No 1) at [28], [29], [32] and [39]. His Honour was undoubtedly
correct in this description. His Honour did not find that the appellant designed
the gate as a whole. The question is whether the appellant, in designing the
"core component" (described in the charge as the "gate
plant"), failed to ensure
its safety when properly used. |
| 22 | The appellant submitted that
it had no responsibility beyond ensuring that the gate plant was sufficiently
structurally sound to bear
the probable loads to which it would be subjected,
that load primarily being the force of wind on it. In other words, the only use
to which the portals and structural steel frame of the gate were to be put was
load bearing and the designer was not required to
turn its mind to anything
other than the load bearing capacity of these structures.
|
| 23 | The appellant's proposition
simply cannot be right. The frame and portals constituted the main elements of
the gate. The motor, cladding,
rollers, track and wheels were merely ancillary
equipment. It was known to the appellant that the structural steel frame, once
mounted
on wheels and placed on a track, would run into and out of the portals
on either side. Whilst under the control of the motor there
was no risk of a
leaf of the gate running too far out of one portal and crashing to the ground.
But if the motor became unserviceable
and in the absence of some device to stop
a leaf of the gate coming free of a portal, a very serious risk would
materialise, as demonstrated
by what occurred on 12 November 2002 when one gate
leaf of the centre gate slid out of its portal and fell during installation of
gate motors by MDI . |
| 24 | Human experience and common
sense dictate that an electric motor might break down or be affected by a power
shortage, thereby requiring
the gate to be opened and/or closed manually. Here
was a gate where human and vehicular traffic needed access to and egress from
a
concrete batching plant each working day. It was completely foreseeable that the
electric motor might fail for any number of reasons,
in which case it was
imperative to be able to open and close the gate manually, but in doing so to
also have a means of ensuring
the gate leaves did not come free of the portals.
|
| 25 | The requirement in s 11(1)(a)
to ensure that the plant is safe and without risks to health when properly used
requires the designer
to turn its mind to the use to which the plant is to be
put and to ensure that when the plant is put to its proper use, it will be
safe.
The use to which the gate plant was to be put, apart from its load bearing
purpose, was to constitute the major and substantial
elements of a gate
consisting of two gate leaves that opened in opposite directions along a track
through the tunnel of the support
portals. In order for the gate leaves to run
on the track and freely within the portals there had to be fitted wheels to the
frame
of the gate leaves and rollers to the inside of the portals. The gates,
constituted mainly by the structural steel frames, were to
be fitted with
motorised driving units with switches to open and close the gates. The appellant
knew all this. |
| 26 | In considering the use to
which the gate plant was to be put, given the appellant was required to ensure
safety, it was its duty,
and within its power, to check whether the gates would
be capable of manual use and to consider whether this had implications for
the
safe use of the gates. In this respect, we note Mr Hadley's evidence that he had
received as part of the brief for the gates,
a document showing the style of
motor MDI proposed to be used. Further, MDI was given the contract in May 2002,
which was before
the appellant completed the design. As the respondent
submitted, it would have been a simple matter for the appellant to make
inquiries
about the motor from MDI. Mr Dark, who worked for MDI, gave evidence
that such motors always allowed manual release.
|
| 27 | The appellant, however, did
not do so on the artificially narrow basis that its role in designing mere
components of the gate was
entirely independent of the operation of the gate. We
note that in his recorded interview on 19 July 2004 by the respondent, Mr Hadley
said he did not make provision for the gates to be operated manually because he
never thought the gates would be operated manually
and that the reason why no
gate stops were incorporated in the drawings was because his understanding of
the gates' operation was
that they would be controlled by motors. That is quite
a different reason to the one adopted at the trial. But neither reason is
exculpatory. |
(1) A person who designs, manufactures, imports or supplies any plant for use at
work shall -
(a) ensure so far as is reasonably practicable that the plant is designed and
constructed so as to be safe -
(i) when properly used and maintained;
and
(ii) when subjected to reasonably foreseeable forms of misuse;
(b) ensure so far as is reasonably practicable that the plant is designed and
constructed so that people who might use, clean or
maintain the plant are, in
doing so, safe from injury and risks to health;
(c) take such steps to test or examine, or arrange for the testing or
examination of, the plant as are reasonably necessary to ensure
compliance with
paragraphs (a) and (b) ;
(d) ensure that the plant complies in all respects with prescribed requirements
(if any) applicable to it; and
(e) ensure so far as is reasonably practicable that adequate information about
any conditions necessary to ensure the safe installation,
use and maintenance of
the plant is supplied with the plant.
Penalty: Division 2 fine.
...
(2a) Without derogating from the operation of subsections (1) and (2), where any
structure is to be erected in the course of any
work -
(a) the person who designs the structure must ensure so far as is reasonably
practicable that the structure is designed so that the
persons who are required
to erect it are, in doing so, safe from injury and risks to health;
...
| 29 | As we noted earlier, the
majority (Gleeson CJ, Gummow and Hayne JJ) said at [37]:
|
The appellants stressed the presence of the term "must ensure". However, the
requirement is one of ensuring safety "so far as is
reasonably practicable". The
requirement applies to matters which are within the power of the designer to
perform or check, such
as ascertaining what use the structure will be put to,
what loads it will experience when being built and the nature of the location
in
which it is to be erected. This is in contrast to the matters that would be
forced within the ambit of this requirement were the
submissions for the
appellants accepted; for then a designer would be required to take account of
factors outside the power of the
designer to control, supervise or manage, such
as the procedures to be adopted during construction.
| 30 | As the majority stated, the
requirement under the South Australian Act to ensure the design is safe when
properly used is qualified by "so far as is reasonably practicable". There is no
such qualification
in s 11(1)(a) of the OHS Act. It is, therefore, a fortiori
that the appellant had a duty to ascertain what use the gate plant would be
put to and to take steps within its power as a designer
to ensure safety. There
can be no doubt that the appellant had the power and the ability, in designing
the gate plant, to design
stops and to incorporate those in the design drawings.
Mr Twomey said that he could have gone to the appellant to design stops after
the November incident. Mr Twomey said that a physical stop was a structural
component to arrest the gate movement and that a structural
engineer can design
and has the expertise to do this. The appellant, in fact, designed stops after
the fatal incident. |
| 31 | Mr Simpson gave evidence that
the appellant should have undertaken a risk analysis including a "what if?"
analysis. The appellant
contended that Haylen J erred in admitting Mr Simpson's
opinion evidence as to what the appellant, as a professional engineer and/or
a
structural engineer, could and should have done to comply with the duty imposed
by s 11(1)(a) of the OHS Act. It was also contended
that his Honour erred in
giving any significant weight to Mr Raj Garg's opinion evidence in determining
what the appellant, as a
professional engineer and/or a structural engineer,
could and should have done to comply with the duty imposed by s 11(1)(a) of the
OHS Act. We shall deal later with these appeal grounds, but it will be seen that
we consider his Honour did not err in either respect.
|
| 32 | Mr Simpson's evidence, based
on his expertise as a professional engineer, was that a "what if?" analysis
should be undertaken by any
professional engineer and its required use was not
dependent upon the particular type of engineering being practised. Mr Simpson
also gave evidence that the appellant, as a professional engineer, should have
been aware of the risk arising from manual operation
of the gates. In particular
he said: |
(a) Reliance cannot be solely placed upon an electronic or electrically operated
system for the gates and an alternative system must
also be available.
(b) A simple risk analysis of the gate design had not been carried out at any
stage and had the appellant followed the most basic
of design principles
incorporating a basic risk analysis for the design then such an analysis would
readily identify that the electrical
operation of the gates would, from time to
time, fail and thus necessitate manual operation of the gates.
| 33 | Mr Garg gave evidence that,
whether the brief of the gate was for a motorised gate or a manually operated
gate, he would have expected
the design of a structural design engineer to have
devices both on the ground to stop the wheels and on top of the gates, where the
gates were hitting the stationary portals in this case.
|
| 34 | Haylen J relied on the
evidence of these engineers at [22] in rejecting the argument of the appellant
that, because the design of
adequate devices to prevent the gate falling was not
part of the express brief of the appellant, there was no obligation on the
appellant,
as a structural engineer, to include such devices in its design.
There was no error by his Honour in this respect.
|
Ground 7 - the primary judge erred by failing to have regard to the limits
of the design task that SDA undertook
| 35 | We have essentially dealt
with this ground under the previous heading. The appellant submitted that where
a designer had designed
a component for plant, then the duty under s 11(1)(a)
must be correspondingly limited to that component, and the question of whether
the duty has been discharged must be determined against the criteria pertaining
to that component. |
| 36 | It was submitted the correct
inquiry in these proceedings was not whether the gates as a whole were safe for
use on 14 October 2003.
The correct question was whether the fact that the gates
were not then safe for use was a consequence of SDA's design of the structure
of
the gates, that being the only task that it was required to perform. In this
case, it was submitted, the purpose for which SDA's
design was required was
limited to ensuring the structural integrity of the gates under load. The
appellant submitted it was uncontroversial
that SDA's design achieved this
purpose. In other words, SDA's design made the contribution towards the safe use
of the gates that
it was required to make. |
| 37 | As we stated earlier, this
approach is too narrow. The gate plant constituted the main components of the
gate, that is, the structural
steel frame and the portals. The appellant was not
entitled to ignore the fact that the frame would run on wheels along a track and
slide into and out of the portals on each side. That was the use to which the
frame and portals were to be put; that is how they
were to be properly used.
Given that was so, the appellant was bound to consider whether its design was
safe. The design was not
safe because it did not make provision for the frame
constituting the gate leaves to be prevented from sliding out of the portals
holding up the leaves in order to prevent the gate leaves from crashing to the
ground. |
Ground 1 - the evidence of Mr Simpson was wrongly admitted
| 38 | The appellant submitted the
evidence of Mr Simpson was wrongly admitted on three grounds:
|
(a) Mr Simpson did not have specialist knowledge that allowed him to express an
opinion about structural engineering design;
(b) Mr Simpson's evidence as a professional engineer was irrelevant; and
(c) Mr Simpson did not sufficiently identify the specialist knowledge on which
his opinions were based.
| 39 | As to the first ground, Mr
Simpson gave opinions to the effect that, as part of its design process, SDA
should have recognised the
possibility or need for the gates to be manually
operated, and should have provided for that possibility or need by including
stops
in its design. The appellant reminded the Full Bench that SDA had been
engaged in its capacity as structural engineers to provide
the structural design
of the gates. |
| 40 | The appellant submitted Mr
Simpson did not have any specialised knowledge in structural engineering. He had
never practised as a structural
engineer, and agreed that he was not qualified
to hold himself out to be a structural engineer. It was submitted that Mr
Simpson
had no personal experience of working as a structural engineer
performing structural engineering work, and he had never studied the
way that a
structural engineer should perform structural engineering work. Further, the
opinions in his reports were not based on
any literature or other materials
other than those referred to in his reports, which did not refer to any
literature relevant to
the way in which structural engineers undertake their
work. |
| 41 | As to the second ground the
appellant observed that in admitting Mr Simpson's reports the primary judge
focused on the fact that Mr
Simpson was a professional engineer, and expressed
his opinions in terms of the way in which a professional engineer should have
approached the design process. |
| 42 | However, it was submitted, Mr
Simpson's evidence could only have been relevant to the extent to which the
evidence related to the
design process which SDA should have undertaken in the
circumstances of their engagement as structural engineers . The appellant
submitted: |
In order to admissibly or usefully say that structural engineers should follow a
particular approach because (a) structural engineers
are professional engineers,
and (b) all professional engineers would and should follow that approach, it
would have been necessary
for Mr Simpson to support (b) by demonstrating that he
had sufficient specialised knowledge of the approach taken by structural
engineers
to their task to be able to identify the respects in which the
approach of structural engineers was the same as that of other professional
engineers. To do so he would need to have given evidence of his training and
experience in relation to the design processes used
by structural engineers, and
the overlap between those processes and the design processes of professional
engineers more generally.
Of course, he could not give any such evidence because
of his lack of relevant training and experience.
| 43 | As to the third ground, it
was submitted there were two possibilities in relation to Mr Simpson's opinions
about the design process
which SDA should have undertaken:
|
(a) One possibility was that his opinions, or some of them, were based on his
specialised knowledge in mechanical engineering, in
which case his opinions were
irrelevant within the meaning of ss 55(1) and 56(2) of the Evidence Act .
(b) The second possibility was that his opinions, or some of them, extended
beyond, or went outside, his specialised knowledge in
mechanical engineering, in
which case they did not satisfy s 79 of the Evidence Act .
| 44 | The appellant submitted that
opinions in the first category necessarily involved an examination of what SDA
should have done as a
structural engineer from the perspective of a mechanical
engineer. The premises, paradigms and purposes of the two branches of
professional
engineering were different, it was submitted. Senior counsel for
the appellant submitted: |
It is impossible to know how the differences between the two branches of the
profession infected Mr Simpson's opinions in the first
category. The danger that
this posed was a further ground to reject those opinions under s 137 of the
Evidence Act . Section 137 requires balancing the probative value of the
evidence against the danger of unfair prejudice to the defendant. If the
former
is outweighed by the latter 'there is no residual discretion. The evidence must
be rejected.'
| 45 | In dealing with each of these
submissions, first we doubt the need for expert evidence to prove that SDA
should have undertaken a
risk assessment and thereby recognised the possibility
or need for the gates to be manually operated and should have provided for
that
possibility or need by including stops in its design. It was not essential to
the making out of the charge that there be evidence
of the need to carry out a
risk assessment. We think it follows from the proper construction of s 11(1)(a)
of the OHS Act that a
designer in designing any plant is required to turn its
mind to the use to which the plant is to be put in order to be able to fulfil
its duty of ensuring safety. It is inherent in s 11(1)(a) that a risk assessment
is required to be carried out. |
| 46 | Nevertheless, Haylen J relied
on the evidence of Mr Simpson and we consider he was entitled to do so. The
expert evidence of Mr Simpson
stood for the propositions that the appellant,
through its professional engineers, had a duty to carry out a risk assessment as
to
the ultimate use that would be made of its design, should have been aware of
the risk of manual operation and should have included
travel-limiting devices in
the design. |
| 47 | Mr Simpson had expertise in
the body of specialised knowledge common to professional engineers. He was
qualified to give that evidence.
Not only did he possess a Bachelor of
Engineering degree but he also has a postgraduate qualification as a Master in
Safety Science,
which included postgraduate risk analysis with regard to the
design process . He had also been taught the design process in both
undergraduate and postgraduate training. The opinions expressed by Mr Simpson in
his evidence were substantially based on his expertise
as a professional
engineer and safety expert. |
| 48 | The opinion evidence of Mr
Simpson on the question of whether the appellant should have recognised the
possibility or need for the
gates to be manually operated, was based on Mr
Simpson's expertise as a professional engineer. As the trial judge said in the
interlocutory
judgment on this matter: |
His evidence as a professional engineer, it seems to me, hinges not on what a
structural engineer would do in designing a gate but
the basic safety and risk
analysis which should accompany such an exercise, be it conducted by a
professional engineer or any class
of engineer, including people who design and
install motors for the operation of a gate.
| 49 | The appellant sought to make
the issues: (i) that as Mr Simpson was a mechanical engineer, he had no
specialised knowledge that allowed
him to express an opinion about the design
process undertaken by structural engineers; and (ii) there was no evidence of a
body of
knowledge common to all professional engineers that included the 'what
if? question in the particular terms postulated by Mr Simpson.
|
| 50 | The appellant overlooks the
full extent of Mr Simpson's expertise. He was a professional engineer with
postgraduate qualifications
in safety science and as a consulting engineer in
the field of industrial safety since 1982. The proposition that he was not
qualified
to offer an expert opinion on whether another class of professional
engineer should have carried out a risk assessment is not sustainable.
As Haylen
J opined, the issue about which Mr Simpson gave evidence was more to do with
basic safety and risk analysis than what was
involved in designing a gate.
|
| 51 | We see no error in Haylen J
admitting Mr Simpson's evidence and relying upon it.
|
Ground 2 - the primary judge erred in giving any significant weight to Mr
Simpson' evidence
| 52 | This ground was submitted in
the alternative to ground 1. The appellant submitted that even if it were
accepted that Mr Simpson was
qualified as a professional engineer to give
evidence about the design process which SDA should have undertaken in their
engagement
as structural engineers, such evidence should carry little weight in
the light of Mr Simpson's lack of any training or experience
in the performance
of structural engineering work. |
| 53 | It was further submitted
there were two additional reasons why Mr Simpson's opinions as to the design
process which SDA should have
undertaken did not support a finding that SDA
failed to ensure safety in the design of the 'gate plant' with which the charge
is
concerned. The first was Mr Simpson approached the design of the gate as a
whole and as an operating machine, rather than in relation
to the structural
design of the gate. The second was Mr Simpson's opinion that the risk
assessment, and consequent identification
of the need for physical stops, should
have been done at a time later than the charge period.
|
| 54 | As to the first matter, we
accept that the appellant did not design every single element of the gate as a
whole and did not design
the operating system for the gate. However, we note Mr
Simpson's evidence to the following effect: |
(a) the design of the appellant as evident from its drawings includes: what
material the gate sections were to be fabricated from;
how they were to be
finished; the specifications for galvanising; the specifications for painting;
the layout in end elevation for
the erection of the gate within the portals; the
masonry to which some of the portals are attached and the footings and a number
of notes with regard to instructions in reading the drawings and the use of the
drawings;
(b) the drawings by the appellant show the material from which the gates are to
be manufactured and provide for the basic design
to be followed for the eventual
fabrication and erection of the gates;
(c) the general layout and generalised gate design was carried out by the
appellant with the design forming part of the "miscellaneous
steel work" as
shown in drawing M1047-S4.00;
(d) the design of the appellant was not confined to designing the structural
steel. The design included details of the steel sections
from which each of the
gate leaves were to be fabricated; the vertical supports for the sliding gates,
the vertical guide supports
within the fixed vertical guides;
(e) these details were "overall the total design aspect for the gate".
| 55 | We also observe the design
shown in the drawings had been created for the purposes of the eventual
fabrication and erection of the
gates and the basic design as it appeared in the
drawings is what was eventually made. This was demonstrated by the fact that the
scope of works given to both Sunstate and MDI required those contractors to
follow the drawings M1047-S4.00, which were those issued
by the appellant. Mr
Rowe gave evidence that Sunstate was given the drawings M1047-S4.00 Revision D
and Revision E, which were treated
as drawings and specifications and used to
prepare the workshop drawings. |
| 56 | The fact is that the
appellant did the great bulk of the design work for the gate and, in any event,
as we have already sought to
make clear, it does not follow that the appellant
did not need to consider how the components it designed were to operate as the
major components of the gates; the structural steel frame was to run on a track
and the portals held up the gate leaves. A failure
to design a mechanism to
ensure the frames constituting the gate leaves did not escape from the portals
when the gate leaves were
operated manually represented a serious risk to
safety. |
| 57 | As to the second reason, it
was submitted for the appellant that even if Mr Simpson's opinion as a
professional engineer about the
need for the particular "what if?" risk analysis
was able to be applied to SDA's design work, the primary judge should not have
relied
on that evidence to find that SDA failed to ensure safety because, on Mr
Simpson's own evidence, such an analysis was not required
until the design
process for the gates as a whole was completed. That did not occur it was
submitted, until, at the earliest, Mr
Twomey approved the fabrication drawings.
That point in time was after the period with which the charge is concerned.
|
| 58 | Whilst Mr Simpson did give
evidence that a risk assessment, and consequent identification of the need for
physical stops, should have
been carried out at later stages by other entities,
he also gave evidence that a risk assessment should have been carried out
earlier
by the appellant during the period to which the charge relates. In his
report Mr Simpson discussed the need for a risk analysis that
would have enabled
the designer to identify the risk and as a consequence incorporate into the
design a mechanism "so as to be capable
of reliably bringing the gate length to
a stop over a predetermined length of travel ..."
|
Ground 3 - the primary judge erred in giving any significant weight to Mr
Garg's evidence
| 59 | At [22] of Simpson (No 1)
, Haylen J referred to Mr Garg's evidence: |
[22] Mr Garg was a WorkCover Inspector when he prepared an engineering report in
relation to this incident. Mr Garg held a tertiary
qualification in mechanical
engineering, holding a degree of Bachelor of Engineering (Mechanical) and later
attaining a Masters Degree
in Engineering from Sydney University. Part of his
studies involved structural engineering but he did not specialise in that field.
After graduating Mr Garg said he practiced as a professional engineer. He was
ultimately admitted as a member of the Institute of
Engineers qualifying for
membership by way of being a professional engineer. Somewhat curiously, although
not called as an expert
witness by the prosecutor, the defendant qualified Mr
Garg as an expert witness in the field of mechanical engineering and was
permitted
to ask a number of questions based upon Mr Garg's expertise. Mr Garg
was asked by the prosecutor what would be his expectations of
a structural
design engineer in putting forward designs for this form of gate, whether it was
motorised or manually operated. Mr
Garg referred to comments he had made in his
report and stated that he would expect "something on the ground also to stop the
wheels
and another one on top of the gates also, where they are hitting the
stationary portals in this case". ...
| 60 | The appellant submitted there
was no evidence to suggest that Mr Garg was qualified to give expert evidence in
any other field or
to indicate that his expectations of an engineer practising
in another field could be relevant. The primary judge's statement that
"Part of
his studies involved structural engineering but he did specialise in that field"
suggests some structural engineering expertise;
however, although part of Mr
Garg's graduate degree had involved structural engineering he gave evidence that
he did not have any
specific experience or expertise in structural design.
|
| 61 | It was submitted that Mr
Garg's training, study or experience did not allow him to express any admissible
or useful opinion as to
the "expectations of a structural design engineer in
putting forward a design for this form of gate".
|
| 62 | The appellant further
submitted that the primary judge appeared to have relied on the fact that Mr
Garg was a professional engineer.
According to the appellant there was no
evidence of any body of knowledge common to professional engineers that allowed
the primary
judge to accept that any opinion about the design process that Mr
Garg expressed as a professional engineer was relevant to the design
process
that SDA could properly have been expected to undertake. Accordingly, his
opinion as a professional engineer was irrelevant,
it was submitted.
|
| 63 | Further, senior counsel
submitted it was not clear whether Mr Garg was expressing his relevant opinion
as a professional engineer,
or as a mechanical engineer, or what specialised
knowledge (if any) he was relying on in expressing that opinion. The evidence
was
simply not elicited from him in a form that allowed for any link to be made
between his specialised knowledge and the opinion being
expressed. Accordingly,
Mr Garg's evidence was prejudicial to the appellant and should not have been
relied upon, it was submitted.
|
| 64 | The respondent submitted:
|
[I]t is clear that the Appellant sought successfully to elicit expert opinion
evidence in cross examination from each engineer who
appeared in this case. Once
that had been done, it was inevitable that those witnesses were open to giving
expert opinion evidence
in re-examination by the Respondent. This occurred
without objection during the whole trial at first instance, including
submissions,
because these witnesses had already been qualified as experts by
the Appellant. It is submitted that the trial having been conducted
in this way,
there has been no error by the trial judge in relying on the opinions given by
Mr Garg or any other engineer in re-examination.
| 65 | Mr Garg was entitled to offer
an expert opinion regarding matters falling within his expertise, namely,
mechanical engineering. He
was also entitled to give expert evidence as to his
vocation of professional engineer. The question is whether he was entitled to
offer an expert opinion as to what could be expected of a structural engineer in
putting forward designs for a gate, whether motorised
or manually controlled.
|
| 66 | In re-examination of Mr Garg
by the respondent, the following question and answer was given:
|
Q. Whether the brief of the gate was for a motorised gate or a manually operated
gate, what would be your expectation of a structural
design engineer in putting
forward designs for this form of gate?
A. As I mentioned in the report, like, I would expect something on the ground
also to stop the wheels and another one on top of the
gates also, where they are
hitting the stationary portals in this case .
| 67 | Mr Garg is a professional
engineer. In our opinion, a question to a professional engineer specialising in
mechanical engineering about
whether he would have expected a structural
engineer to include in the design of a gate devices to limit the amount of
travel of
the gate was a legitimate question and one that Mr Garg would normally
be qualified to answer. |
| 68 | However, the question to Mr
Garg related to a gate and not the components of a gate designed by the
appellant. The question should
have been whether he would have expected a
structural engineer commissioned to design the portals and the structural steel
frame
of the gate to have incorporated stop mechanisms in the design of those
components. To accept Mr Garg's evidence as to whether he
would have expected a
structural engineer to include in the design of a gate devices to limit the
amount of travel of the gate we
think was unfair to the appellant when what the
appellant designed were gate components. Mr Garg had only seen the engineering
design
drawings and not the appellant's design. We consider Haylen J erred in
accepting this aspect of Mr Garg's evidence. |
Ground 4 - the primary judged erred by relying on obligations imposed by
the Regulations to interpret the Act
| 69 | The appellant submitted it
was apparent from both the liability judgment and the sentencing judgment that
the primary judge had regard
to the Occupational Health and Safety Regulation
2001 to determine the nature and scope of the duty imposed on SDA by s 11(1)(a)
of the OHS Act. This was exemplified, the appellant contended,
by the primary
judge stating that the answer to the question of whether SDA could as a designer
ignore the use to be made of the
gates and their method of operation, lay in the
obligations imposed by the Regulation, and then expressly referred to the
obligations
imposed on a designer of plant, and/or SDA, by each of cll 84, 86,
87, 89, 95, 96 and 97 of the Regulation. |
| 70 | Senior counsel submitted it
was a well established principle that regulations cannot be used to construe
and/or alter provisions of
the Act which created them: Fogarty v Brown
(1989) 17 NSWLR 21 at 24 per Carruthers J; Hunter Resources Limited v
Melville [1988] HCA 5; (1988) 164 CLR 234 at 244 per Mason CJ and Gaudron J;
Wallaby Grip Ltd v QBE Insurance (Australia) Ltd [2010] HCA 9; (2010) 240
CLR 444 at [21]. In this respect, the appellant is entirely correct. The
question is whether Haylen J used the Regulation in the way contended for
by the
appellant. |
| 71 | At [28] of Simpson (No 1)
Haylen J stated: |
[28] Having regard to these matters, could the defendant ignore the use to be
made of the gates and its method of operation and simply
rely upon its perceived
limited role as the structural engineering designer of the structural elements
of the gates, leaving it to
others to consider how the gate may be safely
operated? The answer to that question does not necessarily lie in the boundaries
of
what may be considered the technical professional duties of a structural
engineer or by any professional practice in that regard
(if indeed there is such
a practice). The answer to this question, at least, lies in the obligations
imposed upon the defendant as
a designer of the gate or a core component of the
gate (namely, its structural elements) by the Occupational Health and Safety
Regulation .
| 72 | After reviewing the
provisions of cll 84, 86, 87, 89, 95, 96 and 97 of the Regulation, his Honour
said at [37]: |
[37] There is no evidence, however, to support a finding that the defendant
considered any of the matters referred to in the Regulation
- indeed, it was
asserted on its behalf that, by reference to the nature of the task performed by
structural engineers, it was no
part of their function to give consideration to
the actual operation of the gate and/or its use. In taking that approach the
defendant
failed to act in accordance with the obligations imposed upon it as a
designer by the various provisions of the Regulation that have
been identified.
These clauses of the Regulation identify the many ways in which the obligation
in s 11(1) of the Act can be met. To the extent that s 11(2)(c) extends the duty
under s 11(1) to the design of components for any plant for use by people at
work, cl 7(2) of the Regulation provides that ss 11(2) and (3) of the Act apply
to the duties under the Regulation of designers of plant for use by people at
work. The defendant also failed
to take the steps referred to in the evidence of
Mr Simpson and Mr Garg. In these various ways the defendant is in breach of s
11(1) as particularised by the prosecutor.
| 73 | His Honour's reference to the
Regulation would appear to have been triggered by the appellant's submission at
first instance that
its construction of s 11(1)(a) was "consistent with the
language of regulations 86, 87 and 88" of the Regulation. However, it is
apparent that his Honour went further than merely addressing whether the
appellant's acts or omissions
were consistent with the relevant provisions of
the Regulation and in addressing whether there had been a contravention of s
11(1)
of the OHS Act, suggested the answer to the question whether the appellant
could ignore the use to be made of the gates and its method
of operation lay in
the obligations imposed upon the appellant by the Regulation. His Honour found
that the appellant failed to act
in accordance with the obligations imposed by
the Regulation, which identified "the many ways in which the obligation in s
11(1)
of the Act can be met". Implicit in that finding is that because the
appellant failed to act in accordance with the Regulation, it
contravened s
11(1). |
| 74 | We consider Haylen J erred in
relying on the Regulation to determine whether the appellant contravened the OHS
Act. The appellant
submitted the consequence of this error was that the appeal
should succeed. We do not agree. It was unnecessary for the primary judge
to
refer to and rely upon the Regulation in order to determine whether there had
been a contravention of s 11(1). As we earlier noted,
it is inherent in s
11(1)(a) that a risk assessment is required in order that hazards might be
identified and risks assessed. It
follows any risk that is identified would need
to be controlled. In any event, the primary judge at [37] also relied, as he was
entitled
to, on the failure of the appellant to take the steps referred to in
the evidence of Mr Simpson and Mr Garg. |
Ground 8 - the primary judge erred by finding that SDA failed to ensure
safety during the charge period
| 75 | It was contended the primary
judge erred in not taking into account that the appellant was not given the
opportunity that it sought
to make further contribution to the design. It was
submitted that Mr Twomey approved the fabrication drawings prepared by Sunstate
without reference to SDA and gave approval in circumstances where SDA had
expressly stated in a note on each issue of its Miscellaneous
Steelwork drawings
that "[F]abrication shall not commence until all approvals have been given".
|
| 76 | In addressing this
submission, Haylen J stated at [46]-[49] of Simpson (No 1):
|
[46] It was submitted that, as a matter of logic, a person who designs plant
cannot be said to have failed to ensure the plant is
safe for use within the
meaning of s 11(1)(a) until the last opportunity for it to do so had passed. In
this case, when the charge
period had expired, the defendant expected to have an
opportunity to complete its work and had no reason to suspect that it would
not
be given that opportunity.
[47] This submission represents an interesting departure from the defendant's
previous position. Throughout its written submissions
and in the running of the
case, the defendant emphasised that it was not responsible for the whole gate
but only the core structural
elements as components of the whole gate, including
the running gear. The present submission seems to accept some ongoing role and
a
role in the design of the whole of the gate and being denied that opportunity.
The defendant, nevertheless, strongly argued that
stops were never part of its
task and it was not required to bear them in mind in its design. It follows that
the defendant would
never have considered stops before fabrication unless asked
to by Hannas and/or Mr Twomey.
[48] The prosecutor's submissions in reply on this aspect argue that it mattered
not that the charge period ended before the final
design of the gates was
settled as designs by their very nature may be preliminary. The prosecutor
referred to dictionary definitions
of "design" to include the preparation of
preliminary sketch plans. It was submitted that, to the extent the defendant's
design was
preliminary in the sense that other work had to follow, it
nevertheless set the parameters for all the work that followed. Mr Simpson's
evidence was that the design and drawings had been created for the purpose of
the eventual fabrication and erection of the gates
and the basic design drawings
represented what was eventually made. Indeed, the scope of works given to
Sunstate and MDI required
those contractors to follow the drawings which were
those issued by the defendant. Significantly, the prosecutor pointed out that
the defendant's final drawing carried the notation "issued for construction". Mr
Hadley's evidence was that notation meant that the
drawings "were appropriate
for construction of the project". This was consistent with Mr Simpson's evidence
that, except for the
detail, the notation displayed an intention that the design
was complete.
[49] The Court accepts the force of the submissions made by the prosecutor in
relation to this aspect of the case and rejects the
defendant's submission that,
on this basis, the charge be dismissed.
| 77 | As the respondent submitted,
this ground of appeal is "opportunistic". As Haylen J observed, the appellant's
whole case was that stops
were never part of its task and it was not required to
bear them in mind in its design. Yet it now contends under this ground of
appeal
it was not given an opportunity to complete its design work and, therefore,
reasonable doubt exists as to whether it may have
included a stop if it had been
given the opportunity. |
| 78 | The appellant referred to the
note on the design drawing that "Fabrication should not commence until all
approvals have been obtained".
That note was preceded by the note 'The
contractor shall prepare and submit five (5) copies of all workshop drawings to
the superintendent
for approval'. It was Mr Twomey's evidence that the
"contractor was 'the manufacturer or fabricator of the structural steel elements
of the gate" and he was the "superintendent". Mr Twomey said in his evidence
when he was taken to this issue a second time in cross-examination
that the note
"Fabrication should not commence until all approvals have been obtained"
appeared to be referring to the note "The
contractor shall prepare and submit
five (5) copies of all workshop drawings to the superintendent for approval",
but then accepted,
when pressed under cross-examination, that the note
"Fabrication should not commence until all approvals have been obtained" meant
that fabrication was not to commence until SDA's approval had been obtained.
This was evidence he gave earlier in his cross-examination,
but his answer was
in response to the question: |
Q. May his Honour take it by the third note ['Fabrication should not commence
until all approvals have been obtained'] you understood
that Simpson Design
Associates was stipulating that the manufacturer of the structural elements of
the gate should not commence until
Simpson Design Associates had given its
approval?
A. Yes
| 79 | We find that evidence
difficult to accept. Mr Twomey was the superintendent and was required to be
provided with copies of workshop
drawings for his approval. Yet he said in
response to a question that clearly suggested the answer that fabrication was
not to commence
until all approvals had been obtained by SDA. Mr Twomey,
however, did not submit the workshop drawings to SDA for such approval.
The
reason, we think, is that the only approval required was that of Mr Twomey.
SDA's involvement with the design ended when it submitted
the final design
drawings in Revisions D and E, which contained the notation "issued for
construction". It was Mr Hadley's evidence
that notation meant that the drawings
"were appropriate for construction of the project". Mr Simpson's evidence was
that except for
the detail, the notation displayed an intention that the design
was complete. |
| 80 | In any event, the charge
related to the design of the gate plant contained in Drawing No 1047-S4.00
Revisions D and E. The approvals
referred to in the notations related to
workshop drawings by Sunstate. |
| 81 | There is no doubt that SDA
had finished with the design with Revisions D and E. Despite the opportunity of
doing so at no time did
SDA ask to see the workshop drawings nor did it suggest
that any further revisions of its own design drawing was required. There
was no
error by the primary judge. |
Ground 10 - the primary judge erred by finding the offence established in
circumstances where the risk alleged did not exist at the
time particularised or
any other material time
| 82 | The appellant submitted that
at the time of the accident on 14 October 2003, and at all times during the
period that the gate was
in use up to that accident, the risk of the gate
falling on either Mr Sheath or Ms Maybury was not a risk occasioned by the
absence
of a stop, but was rather a risk occasioned by the inadequacy in the
specification, design and installation of the bolted stop.
|
| 83 | Senior counsel submitted that
once Mr Twomey became aware of the need for physical stops on or shortly after
12 November 2002, he
commissioned Sunstate to design and install stops. His
evidence was that he could have gone to SDA or he could have gone to Sunstate
to
do that task, and he went to Sunstate. He did so because he understood them to
have expertise relevant to that work, bearing in
mind that he considered
Sunstate to be the mechanical engineers on the project.
|
| 84 | It was further submitted:
|
Where at least two people profess qualifications to design a stop, and could do
so if asked, and one of them, upon being asked to
design a stop does so
inadequately so as to contravene s 11(1)(a), then the other person cannot be
liable for the inadequacy in that
design unless by act or omission they made
some contribution to its inadequacy.
In this case it was common ground that SDA had absolutely no part in the design
of the bolted stop and there was no suggestion that
SDA's design had any causal
connection with its inadequacy.
Accordingly, there was no connection between the risk that actually existed up
to and on 14 October 2003 and SDA's design.
| 85 | The primary judge addressed
this issue at [50]-[51] of Simpson (No 1) :
|
[50] The defendant then proffered another reason why the charge should be
dismissed noting that the risk on which the prosecutor
relied was the risk of
the western gate falling on a person or employee whenever the gate was manually
used because a substantial
travel limiting device was not installed. The
defendant suggests that risk did not exist until the period when the gates were
in
use up to and including the accident in mid-October 2003. During that period
the actual risk was that the gates would fall because
the stop that had been
installed immediately before the gates were commissioned for use was inadequate.
The defendant had absolutely
no part in the design of that stop and there was no
suggestion that the defendant's design had any causal connection with the
inadequacy
of that stop. Accordingly, there was no connection between the risk
that actually existed up to and on 14 October 2003 and the defendant's
design.
[51] It was common ground that the defendant did not include a stop in its
design and strenuously asserted the appropriateness of
not doing so having
regard to what it submitted was its limited role as the structural engineer. The
charge under s 11 centres upon
its design and the omission of such a travel
limiting stop. The risk to health and safety followed from adopting this design
in the
fabrication and installation of the gates. In relation to the designer's
duty it mattered not that someone else designed and installed
an inadequate stop
after the defendant's plans were issued for construction. That event merely gave
rise to the possibility of a
breach by another entity. In addition, the
prosecutor points out that the inadequate stop that had been installed was a
consequence
of the omission in the defendant's design and its failure to specify
an appropriate travel limiting device such as a stop. If such
a device had been
included in the design prepared by the defendant, then the occasion for the
installation of an inadequate travel
limiting device by others would not have
arisen. It was submitted that this failure was a substantial or significant
cause and/or
materially contributed to the risk of injury to persons at work. On
either approach, this further submission for the defendant does
not establish a
case why the charge should be dismissed. The defendant's argument in relation to
this matter also ignores the different
period particularised in the charge and
the nature of the charge particularised.
| 86 | The respondent submitted on
appeal: |
(a) whilst the offence period against the appellant was determined by the time
at which the relevant design took place the evidence
of the risk arising from
the design could include evidence of what occurred after that time. In
particular, in this case there was
evidence of the risk arising: during November
2002, when a gate failed because of the lack of adequate devices; after the
plant commenced
operation when the gates were used manually on a number of
occasions; and on 14 October 2003 when the west gate was being used manually
which led to the fatal incident;
(b) the prosecution only has to prove that there was a potential danger, not an
actual incident causing an injury. It is open to
find that the charges are made
out in relation to a potential danger without finding a causal connection with
the actual incident
causing an injury (as occurred in Thiess Pty Limited v
Industrial Court of New South Wales [2010] NSWCA 252 at [49]- [50] and
[63]-[69]; Morrison v Powercoal Pty Ltd [2004] NSWIRComm 297; (2004) 137
IR 253; WorkCover Authority of NSW v Howard & Sons Fireworks Spectaculars
Pty Limited [2000] NSWIRComm 211 per Boland J);
(c) the appellant suggests that the risk arose because the stop that had been
installed was inadequate. However, this cause of the
risk was in turn a
consequence of the design of the appellant not including or specifying an
adequate device. If an adequate device
had been included in the appellant's
design, the circumstance of the installation of an inadequate device would not
have arisen.
As found by the trial judge this failure was a substantial or
significant cause of the risk of injury to persons at work and/or materially
contributed to that risk: see Crown in the Right of the State of New South
Wales (Department of Education and Training) v O'Sullivan [2005] NSWIRComm
198; (2005) 143 IR 57 at [49] applying Chappel v Hart [1998] HCA 55;
(1998) 195 CLR 232 per Gaudron J at [7] and McHugh J at [27];
(d) the appellant points to other persons who could have later taken action to
ensure the safety of the gate plant during manual
operation. However the
culpability of one person does not mean there is no breach of the OHS Act by the
appellant. See WorkCover Authority of NSW (Inspector Farrell) v Morrison
[2001] NSWIRComm 325 at [45].
| 87 | The
parties later elaborated on this ground of appeal in writing. In those written
submissions the respondent: |
(a) referred to Royall v R [1991] HCA 27; (1991) 172 CLR 378 at 440 per
McHugh J where his Honour said at [23] and [24]:
[23] ... In criminal cases, the common law has also refused to apply the "but
for" test as the sole test of causation. Nevertheless,
the "but for" test is a
useful tool in criminal law for determining whether a causal link existed
between an accused's act or omission
and the relevant injury or damage. ...
[24] ... To constitute a cause for the purposes of the criminal law, it is not
necessary that an act or omission be the sole or main
cause of a wrong:
Pagett , at p 290 ...
(b) contended the appellant was put on notice that the respondent alleged that
the relevant risk was caused whenever persons were
operating the west gate
manually by particular 15 of the charge;
(c) contended there was evidence of manual gate operation on occasions earlier
than 14 October 2003;
(d) referred to his submissions at first instance as to the risk arising earlier
than 14 October 2003, as follows:
In particular, in this case there is evidence of the risk arising during the
November 2002 incident (when a gate failed because of
the lack of adequate
devices), after the plant commenced operation when the gates were used manually
on a number of occasions; and
on 14 October 2003 when the western gate was being
used manually which led to the fatal incident.
(e) referred to his response to the appellant's submissions at first instance
that the foregoing evidence was irrelevant, that response
being:
The Defendant ... maintains an objection to evidence relevant to the use of the
gates. The Defendant misapprehends the relevance
of the evidence. This evidence
is not relevant to the failure of the Defendant which it is accepted is confined
to the period from
3 September 2001 to 24 June 2002. It is relevant to the risk
created by that failure, namely the risk of the western gate falling
on a person
or employee, whenever the gate was being used manually, because a substantial
travel limiting device was never installed
...
| 88 | In its written reply, the
appellant sought to deal with the causation issue. In that respect the appellant
closely analysed the various
authorities regarding causation, in particular,
Royall . The appellant submitted the chain of causation was broken by the
design and installation of the failed stop by an "unknown designer".
The
appellant submitted: |
(a) The unknown designer(s) and their design were entirely independent of SDA
and its design.
(b) The acts and omissions of the unknown designer(s) when designing and
installing the failed stop were entirely voluntary, in that
they were free,
deliberate and informed, and were entirely extraneous or extrinsic to SDA or
anything that it had or had not done.
(c) It is accepted that SDA had nothing to do with the design executed by the
unknown designer(s).
(d) It is also accepted that nothing that SDA had done or not done imposed any
constraint or pressure on the unknown designer(s),
or in any way constrained,
inhibited or prevented the unknown designer(s) from designing a stop that would
not have failed. No feature
of the design of the failed stop was caused by, or
was otherwise in any way the product of, anything that SDA had or had not done.
The unknown designer(s) were in precisely the same position as SDA to design a
stop that would not fail. Their failure to do was
entirely on their account.
(e) Accordingly, the failed [sic] stop failed, and thereby constituted the risk
identified in the charge - that is, that the gate
would fall on Mr Sheath or Ms
Maybury on 14 October 2003 - for reasons with which SDA had nothing to do; they
were the result of
the independent acts or omissions of the unknown designer(s).
(f) By the time at which that risk occurred - that is, as at 14 October 2003 -
the fact that a stop had not been included in SDA's
design had ceased to have
any operative effect; SDA's design in that respect had been overtaken by the
design of the unknown designer(s)....
(g) In the event, the act or omission of SDA, although a causa sine qua non
of the risk identified in the charge, and part of its setting and history,
was not its real cause for the purpose of fixing SDA with
criminal
responsibility for that risk. The chain of causation had been broken by the
intervention of the unknown designer(s) and
their design. In the result, an
essential element of the charge was not made out (see, for example, Cahill v
State of New South Wales [2005] NSWIRComm 33 at [45]) and SDA could not,
therefore, lawfully be convicted.
| 89 | The appellant also submitted
that there was no evidence of manual operation of the west gate before the
installation of the inadequate
stop and that, contrary to what was put by the
respondent, the trial judge at [40] did not admit the evidence that the relevant
risk
was caused whenever persons were operating the west gate manually.
|
| 90 | The respondent eventually
accepted, and properly so, the appellant's submission summarised in the
immediately preceding paragraph.
It follows that the question of causation in
the appeal should be decided on the basis of whether the trial judge was correct
in
finding a causal connection between the appellant's acts or omissions and the
risk to Ms Maybury and Mr Sheath of being injured (including
fatally injured)
whilst they were operating the west gate manually on 14 October 2003.
|
| 91 | The principles applicable to
causation were summarised in Newcastle Wallsend Coal Co Pty Ltd v WorkCover
Authority (NSW) (Inspector McMartin) [2006] NSWIRComm 339; (2006) 159 IR 121
by the majority (Walton J, Vice-President and Boland J; Marks J not dissenting
on this point) as follows: |
[301] As foreshadowed at the beginning of our discussion of failures, the
parties made submissions concerning the relevant principles
governing causation.
The principles relating to causation in this jurisdiction are well settled:
WorkCover v Kellogg (Aust) at 253; The Crown in the Right of the State
of New South Wales (Department of Education and Training) v Maurice O'Sullivan
[2005] NSWIRComm 198; (2005) 143 IR 57 at [41]- [51]; and State of New South Wales (NSW Police)
v Inspector Covi [2005] NSWIRComm 303 at [25]- [33]. In summary:
(a) As we noted above at [213], the Court held in WorkCover v Kellogg (Aust)
(No 1) at 253 that it is necessary to establish both a relevant "failure" on
the part of the employer and a "causal nexus" between the conduct
of the
defendant and the consequent risk to the health, safety and welfare of its
employees. It is not necessary to demonstrate a
causal connection between the
conduct of the defendant and the precise circumstances of the accident which
gave rise to the prosecution.
(b) It is inappropriate to artificially confine the risk to one narrowly defined
by reference to an accident with the benefit of
hindsight. The danger repeatedly
cautioned against of focussing too much attention on an accident is twofold:
such a misguided focus
can obscure the relevant risk, and it can also misdirect
an analysis of causation ( WorkCover Authority of New South Wales v Kirk
Group Holdings Pty Limited and Anor at [133]; see, for example, Haynes v
C I & D Manufacturing Pty Ltd at 156-7). See also The Crown in the
Right of the State of New South Wales (Department of Education and Training) v
Maurice O'Sullivan at [32]-[40].
(c) The fact that a risk was not created by, or under the control of, a
defendant is not to the point: The Crown in the Right of the State of New
South Wales (Department of Education and Training) v Maurice O'Sullivan at
[42] and [44]. An employer cannot escape liability by contending simply that it
did not create the risk.
(d) Causation has to be viewed in a common sense and practical way and is not
decided as a philosophical or scientific question;
see State of New South
Wales (NSW Police) v Inspector Covi at [25] and The Crown in the Right of
the State of New South Wales (Department of Education and Training) v Maurice
O'Sullivan at [45].
(e) It is not necessary to find that the act or omission of the defendant was
the cause of the risk arising but rather the question was whether the
defendant's acts or omissions were a "substantial or significant
cause [of the
risk] viewed in a common sense and practical way" see The Crown in the Right
of the State of New South Wales (Department of Education and Training) v Maurice
O'Sullivan at [49]-[50].
(f) A risk to safety that exists independently of the defendant (such as a
violent criminal) may increase or become more serious
as a consequence of the
employer's acts or omissions. In that way, the defendant's failure may
materially contribute to the risk:
see The Crown in the Right of the State of
New South Wales (Department of Education and Training) v Maurice O'Sullivan
at [49].
| 92 | The issue here is whether the
chain of causation between the appellant's acts or omissions and the risk to Ms
Maybury and Mr Sheath
whilst they were operating the west gate manually on 14
October 2003 had been broken by the intervention of the person who bolted
a stop
on the western leaf of the west gate. It will be recalled that on 12 or 13
November 2002 a leaf of the centre gate fell missing
a subcontractor who had
been installing operating equipment for the east gate. Mr Twomey was notified by
MDI of the danger of a fatality
in manual operation of the gates if physical
stops were not installed on the gates. In the days after the November 2002
incident
some metal stops were installed on the gates. Three stops altogether
were installed including two stops attached to the west gate
on both gate
leaves. While the stop on the eastern leaf of the west gate was welded, the stop
on the western leaf of the west gate
was only bolted. The gate stops were made
of steel. There was no cogent evidence as to who installed the stops.
|
| 93 | The appellant relied in
particular on Royall, which appears to be the leading authority on
causation principles in the criminal context. In Royall the defendant was
charged with the murder of a woman who died having fallen from the bathroom
window of her sixth floor flat. The
Crown alleged that the defendant had brought
about the death of the victim in one of three ways. First, that he had pushed
her out
of the window. Secondly, that he attacked her, causing her to fall from
the window as she avoided his attack. Thirdly, that the victim
had a well
founded and reasonable apprehension that if she remained in the bathroom she
would be subjected to further violence which
caused her to jump out of the
window to escape the violence. |
| 94 | The members of the High Court
divided over the test of causation that should be applied. A majority of the
High Court favoured a direction
to the jury that asked whether the death was a
natural consequence of the defendant's conduct (Mason CJ, Deane and Dawson JJ).
Toohey
and Gaudron JJ held that the question for the jury was whether the
defendant's conduct substantially contributed to the victim's
death. Brennan and
McHugh JJ, in separate judgments, favoured a reasonable foreseeability test,
that is, whether the death was a
reasonably foreseeable consequence of the
defendant's conduct. |
| 95 | However, in Royall ,
Mason CJ, Deane, Dawson, Toohey and Gaudron JJ approved what was stated by Burt
CJ in Campbell v R [1981] WAR 286 at 290; (1980) 2 A Crim R 157 at 161 in
relation to common sense, namely, that it is: |
[E]nough if juries (are) told that the question of cause for them to decide is
not a philosophical or a scientific question, but
a question to be determined by
them applying their common sense to the facts as they find them, they
appreciating that the purpose
of the enquiry is to attribute legal
responsibility in a criminal matter.
| 96 | McHugh J in Royall
agreed that, ordinarily, the application of the common sense test of
causation is enough to determine whether the accused's act or
omission was
sufficiently significant to make him or her "causally responsible" for the event
or occurrence in question: at 441.
But his Honour noted there were two cases
where the invocation of common sense principles of causation often provided
little assistance
to the jury. The first was the case where an accused's act
would not have brought about the event or occurrence without the intervention
of
a subsequent act of the victim or a third party. The second is not relevant. His
Honour continued: |
In these cases, common law judges have sought to use more specific tests for
determining whether "but for" acts or omissions of the
accused were "causally
responsible" for the event or occurrence. The common law judges have used at
least four tests for this purpose.
They are: (1) the operating and substantial
cause test; (2) the natural consequence test; (3) the reasonable foresight of
the consequences
test; and (4) the novus actus interveniens test, which is used
sometimes in conjunction with and sometimes independently of one of
the other
three tests. Unfortunately, the cases show no consistent pattern in applying
these tests.
| 97 | McHugh J concluded at 449
that the preferable approach where issues of causation arise in a criminal case
was that: |
[I]n a criminal case, a person should not be held liable for a wrongful act or
omission which has caused harm in a 'but for' sense
if that harm was the product
of a novus actus interveniens or was not a reasonably foreseeable consequence of
the act or omission.
It goes almost without saying, however, that a person
should be held liable for harm which is causally linked with his or her conduct
and which he or she intended should be brought about by that conduct.
| 98 | In relying on the judgment of
McHugh J, the appellant submitted the relevant principle to be applied in the
present case was encapsulated
in the following passage from the judgment of his
Honour at 448-449: |
The novus actus interveniens doctrine has been used to limit the liability of a
tortfeasor because he or she is perceived as having
no moral responsibility for
damage when a fully-informed actor, not acting under constraint or pressure
flowing from the tortfeasor's
actions, has intervened and produced that damage
even though it would not have occurred but for the tortfeasor's act or
omission. For the same reasons, in a criminal case, a person should not be
held liable for a wrongful act or omission which has caused harm
in a "but for"
sense if that harm was the product of a novus actus interveniens or was not a
reasonably foreseeable consequence of
the act or omission (emphasis added by
appellant).
| 99 | In the present case, the
appellant failed to incorporate in its design of the gate plant, travel limiting
devices that would avoid
the risk of the gates coming free of the portals. An
unknown person bolted a stop to the western leaf of the west gate and that stop
failed when the gate was manually operated. Putting aside for the moment the
intervention of the unknown person, if one were to apply
the common sense test
one would inevitably come to the conclusion that the appellant's failure to
incorporate stops caused the risk.
Under the "but for" test one would come to
the same conclusion: but for the appellant's omission the risk would not have
arisen.
Further, if one were to apply the substantial cause test, or even the
reasonable foreseeability test, the same conclusion would result.
|
| 100 | Having regard then to the
intervention of the unknown person bolting in place a stop that failed, it seems
to us that common sense
would suggest that the appellant's omission in failing
to incorporate in the design the necessary travel limiting devices remained
a
substantial cause of the risk. As Haylen J correctly observed:
|
In relation to the designer's duty it mattered not that someone else designed
and installed an inadequate stop after the defendant's
plans were issued for
construction. That event merely gave rise to the possibility of a breach by
another entity. In addition, the
prosecutor points out that the inadequate stop
that had been installed was a consequence of the omission in the defendant's
design
and its failure to specify an appropriate travel limiting device such as
a stop. If such a device had been included in the design
prepared by the
defendant, then the occasion for the installation of an inadequate travel
limiting device by others would not have
arisen.
| 101 | Even though it might be
contended that the act of the unknown person in bolting an inadequate stop to
the western leaf of the west
gate was a cause of the risk, the appellant's
omission was a substantial factor in causing that risk to materialise. This was
a circumstance
where either one, that is, either the unknown person or the
appellant would have caused the risk anyway. It could not be said that
the risk
would never have eventuated if it had not been for the actions of the unknown
person or that the actions of the unknown
person were the sole cause of the
risk. Moreover, if one were to apply the natural consequence test or the
reasonable foresight of
the consequences test it is apparent that the legal
responsibility for creating the risk lay with the appellant.
|
| 102 | That more than one person
may have contributed to the creation of a risk is supported by what Mason CJ
said in March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR
506. His Honour discussed at length the law relating to causation in the context
of a negligence case and whilst we are dealing with a
criminal matter, we
consider March is, nevertheless, relevant in terms of the principles to
be applied. |
| 103 | His Honour observed at 512
that: |
[T]he courts are no longer as constrained as they were to find a single cause
for a consequence and to adopt the "effective cause"
formula. These days courts
readily recognize that there are concurrent and successive causes of damage on
the footing that liability
will be apportioned as between the wrongdoers.
| 104 | Mason CJ referred to what
Lord du Parcq said in his speech in Grant v Sun Shipping Co Ltd [1948] AC
549 at 563: |
If the negligence or breach of duty of one person is the cause of injury to
another, the wrongdoer cannot in all circumstances escape
liability by proving
that, though he was to blame, yet but for the negligence of a third person the
injured man would not have suffered
the damage of which he complains. There is
abundant authority for the proposition that the mere fact that a subsequent act
of negligence
has been the immediate cause of disaster does not exonerate the
original offender.
| 105 | Similarly, Deane J referred
to and applied the observations of Lord Reid in Stapley v Gypsum Mines Ltd
[1953] UKHL 4; [1953] AC 663 at 681: |
The question (of 'what caused an accident from the point of view of legal
liability') must be determined by applying common sense
to the facts of each
particular case. One may find that as a matter of history several people have
been at fault and that if any
one of them had acted properly the accident would
not have happened, but that does not mean that the accident must be regarded as
having been caused by the faults of all of them. One must discriminate between
those faults which must be discarded as being too
remote and those which must
not. Sometimes it is proper to discard all but one and to regard that one as the
sole cause, but in other
cases it is proper to regard two or more as having
jointly caused the accident. I doubt whether any test can be applied generally.
| 106 | At 517 Mason CJ discussed
novus actus interveniens and gave an example as follows:
|
Many examples may be given of a negligent act by A which sets the scene for a
deliberate wrongful act by B who, fortuitously and
on the spur of the moment,
irresponsibly does something which transforms the outcome of A's conduct into
something of far greater
consequence, a consequence not readily foreseeable by
A. In such a situation, A's act is not a cause of that consequence, though
it
was an essential condition of it. No doubt the explanation is that the voluntary
intervention of B is, in the ultimate analysis,
the true cause, A's act being no
more than an antecedent condition not amounting to a cause.
| 107 | If one considers what his
Honour said in that example in the context of what occurred in the present
proceedings, the unknown person's
act in bolting a stop to the gate did not
transform the appellant's conduct in failing to design a stop "into something of
far greater
consequence". Nor was the consequence not readily foreseeable by the
appellant. It was always foreseeable that in the absence of
stops being designed
in the first place, no stops would be affixed to the gate thereby creating a
risk of the gate coming out of
its portals and causing injury.
|
| 108 | There can be no doubt that
the appellant's failure in respect of the design of the gate plant created a
risk to health and safety.
The risk was present on 14 October 2003. It makes no
sense that the appellant could be permitted to escape liability by contending
that the risk it caused was negatived or nullified by a person fixing a faulty
stop to the gate when the reason why it became necessary
to install that stop
was because of the appellant's omission in the first place.
|
| 109 | If a builder erected an
unsafe wall and a contractor was engaged to brace the wall because it was
unsafe, but the brace failed to
prevent the wall toppling over and injuring
someone, it seems to us that both the builder and the contractor would be
culpable. We
do not see it being any different in this case.
|
Ground 9 - his Honour erroneously failed to find that the circumstances
gave rise to a defence under s 28 of the OHS Act
| 110 | Haylen J addressed the
defences at [52]-[53] of Simpson (No 1) . There his Honour stated:
|
[52] The arguments for the defendant are then repeated in relation to the s 28
defences and thereby face the same fundamental difficulties.
Under s 28(a) a
defence is provided if a defendant proves that it was not reasonably practicable
for it to comply with the provision.
There was no evidence that it was not
reasonably practicable for the defendant to insert in its drawings a provision
for stops and
the design of stops is accepted by the defendant as part of the
work of a structural engineer. As discussed in Slivak, it was open to the
defendant to make enquiries about the use of the gate and how it would operate,
including the motor to be used
in the gate opening operation. It was open to the
defendant to seek information about the motor to be used and whether there could
be manual operation of the gate. No evidence was adduced as to why the
requirements of s 11(1) and/or clauses of the Regulation were
such that it was
not reasonably practicable for the defendant to comply with those provisions.
The s 28(a) defence is not established.
[53] Section 28(b) requires the defendant to prove that the commission of the
offence was due to causes over which it had no control
and against the happening
of which it was impracticable for the person to make provision. There was no
such evidence. The same comments
made in relation to s 28(a) might be made in
relation to the s 28(b) defence. The s 28(b) defence is not established.
| 111 | In the appeal, in the
context of the defences available under s 28 of the OHS Act, the appellant
raised no issues that we have not
already addressed. We agree with the primary
judge that there was no evidence that it was not reasonably practicable for the
appellant
to insert in its drawings a provision for stops and the design of
stops is accepted by the appellant as part of the work of a structural
engineer.
Further, there was no evidence that the commission of the offence was due to
causes over which the appellant had no control
and against the happening of
which it was impracticable for it to make provision.
|
Ground 11 - his Honour erred in determining penalty by failing to have
sufficient regard to the culpability of other entities, and
SDA's justifiable
sense of injustice arising from other culpable entities not being prosecuted
| 112 | In considering the matters
raised under this appeal ground, it is well to keep in mind the following
relevant principles: |
(a) the court should not assess whether a prosecution should have been continued
[or commenced] against the other entity WorkCover Authority of New South
Wales (Inspector Ankucic) v McDonald's Australia Ltd [2000] NSWIRComm 1123;
(2000) 95 IR 383 at 437; Department of Mineral Resources (Chief Inspector
McKensey) v Berrima Coal Pty Ltd [2001] NSWIRComm 130; (2001) 105 IR 348 at
[193];
(b) it was not held in Nesmat Pty Ltd v WorkCover Authority of New South
Wales (1998) 87 IR 312 that the failure to prosecute a defendant which was
otherwise appropriate to be prosecuted was a matter which, of itself, would
mitigate
the penalty. Rather, what the Full Bench decided was that in a
situation where there had been a failure, in assessing a defendant's
relative
culpability, to consider the inter-related culpability of another party which
had not been prosecuted, and that failure
resulted in an inappropriate penalty
being imposed, that situation itself engendered an appropriately based sense of
grievance which
was in turn emphasised by the failure to prosecute the other
potential defendant: WorkCover New South Wales (Inspector Page) v Walco Hoist
Rentals Pty Limited (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 at [31];
(c) the significance of the failure to prosecute, or to continue the prosecution
of the other potential defendants, is not that fact
but rather the fact that any
assessment of the role of the present defendants must be considered in the light
of the consideration
that the criminality for the breach of occupational health
and safety was one which did not fall solely on the shoulders of these
defendants. That fact, of itself, involves consideration of matters which may
mitigate the conclusion as to the objective seriousness
of the offences
committed and thus the penalty which should be imposed in relation to them:
Walco Hoists at [34];
(d) the court should not embark upon an inquiry in sentence hearings which
require the court to make specific findings of culpability
of the other entity:
McDonald's at 437;
(e) the absence of prosecution of another entity merely serves to emphasise the
unfairness that may be occasioned to a defendant
in the assessment of the
objective seriousness of an offence if a proper assessment of their contribution
to an accident is not undertaken:
McDonald's at 437;
(f) the focus of the court in assessing the objective seriousness of the offence
is the nature of the detriment to safety and the
contribution of the defendant
to the detriment; the relevance of the conduct of the other entity is that it
may cast light on the
level of culpability of the defendant: McDonald's
at 437.
| 113 | The appellant submitted the
primary judge erred by failing to have sufficient regard to the contribution
made by other entities to
the relevant risk when determining the objective
seriousness of SDA's offence and that the primary judge:
|
[F]ailed to have any regard to the "justifiable sense of injustice" that SDA
must necessarily feel as a result of the fact that Hannas,
an entity with a more
significant level of culpability for the relevant risk, was not charged with any
offence under the Act.
| 114 | We do not consider Haylen J
erred in the manner contended for by the appellant. It is apparent from
Simpson (No 2) that the primary judge had particular regard to the
contribution of Hannas. In particular, at [50] the primary judge said:
|
[50] In this context the prosecutor acknowledged that Hannas, as the project
manager for the construction of the gates, "could have
acted more safely by
carrying out a risk analysis of the drawings received from SDA and Sunstate
(Lejah) and by ensuring that gate
stops were welded on all gate frames,
particularly after the incident in November 2002".
His Honour made a similar observation at [72]
in the context of considering the relative culpability of the participants.
| 115 | After outlining other
matters relevant, the primary judge concluded at [74]:
|
[74] While these matters are not spelt out in detail, they present a picture of
Hannas as construction manager/project manager being
responsible for
occupational health and safety in an overall sense and being responsible for the
co-ordination of the design team
and drawings and addressing issues as to what
might be appropriately and practically added to those drawings. Having regard to
that
material, broad and imprecise as it is, had Hannas been charged with a
breach of the Occupational Health and Safety Act in relation to the fatal
accident that occurred in October 2003 at the Mascot site and had either been
found guilty or pleaded guilty
to that offence, then it is quite possible that
Hannas may have been found culpable to a level somewhat above the level of
culpability
of the other defendants. In the circumstances little more than that
can be properly said.
| 116 | Further, his Honour
considered Sunstate's role and concluded at [77] that all of the defendants owed
a similar obligation to protect
against the identified risk and that the
circumstances of the appellant and Sunstate did not persuade the Court that as a
result
their culpability was reduced. |
| 117 | In the course of the hearing
of the appeal, the Full Bench raised with the parties the issue of whether in
his Honour's penalty judgment
the primary judge took into account the
contribution to the risk of the unknown person that installed the inadequate
stop. |
| 118 | The appellant had submitted
at first instance that the unknown person who designed and installed the
inadequate bolted stop made a
more substantial contribution to the risk for the
obvious reason that it was the installation of that stop which was, from that
point
onwards, the real and effective cause of any risk of the western leaf of
the west gate falling. In the sentencing judgment, it was
submitted, the primary
judge gave no consideration at all to the culpability of this person or how that
culpability affected the
seriousness of SDA's offence. The appellant submitted:
|
For the purpose of considering the objective seriousness of a defendant's
offence, it is clear that regard can be had to the contribution
made by other
entities to the relevant risk, including entities which have not been charged
with any offence. ... There is no reason
why this principle would not be applied
even if the actual identity of a particular contributing entity is not known.
In failing to have any or sufficient regard in determining SDA's penalty to the
effect on the objective seriousness of its offence
resulting from the
contribution made by other entities to the relevant risk, the primary judge
erred.
| 119 | The respondent, on the other
hand, submitted that the primary judge had accepted that part of the culpability
of Hannas included its
responsibility for the installation of the inadequate
stop: see Simpson (No 2) at [50] and [72]. The respondent submitted:
|
Although in his conclusion on relative culpability the trial judge did not
expressly refer to the contribution to the risk by the
entity which installed
the stops, it is clear that he attributed responsibility for this to Hannas. In
these circumstances, it is
submitted that the absence of an express reference to
the contribution to the risk by the installer of the stops does not result
in
error or in the necessity for the appeal bench to intervene.
The relevance of the contribution to the risk by the installer of the inadequate
stop, in the context of determining sentence is
that it may reflect on the
culpability of the Appellant. The culpability of the installer of the stops,
over and above the culpability
of Hannas, in the absence of any detail of the
identity of that entity or the circumstances in which it undertook that task,
did
not assist in determining the culpability of the Appellant. The trial judge
did take into account the culpability of Hannas and the
other defendants Hy-Tec
and Sunstate in determining the objective seriousness of the Appellant's offence
and this culpability included
the finding not challenged that "all defendants
owed a similar obligation to protect against the identified risk". There was no
error
on behalf of the trial judge.
| 120 | Notwithstanding the
consideration by the primary judge regarding the culpability of Hannas,
including its failure to ensure that gate
stops were welded on all gate frames,
an unknown person bolted an inadequate stop to the western leaf of the west gate
and that act,
as we have found, caused the risk. The primary judge did not have
regard to this fact. |
| 121 | However, the position is
unlike that in Nesmat. There the Department of Public Works, on whom the
appellant relied for information about whether the substation was live, was not
prosecuted. The Full Bench in Nesmat stated at 322-323:
|
However, in our opinion, there are other very relevant factors which were not
adverted to by his Honour when determining the penalty,
or if adverted to, were
rejected by him as not being relevant and/or mitigating ones. These include:
1. The primary cause of the risk and the detriment to safety was that the
substation was not de-energised by the appropriate authority/ies
at the time it
was decommissioned or, at any time, prior to the letting of the contract to the
appellant. The risk and detriment
to safety was compounded by the further
failure of Public Works, which was advised as early as 12 November 1993 that the
substation
was live, to specify in the contract that the job included the
removal of equipment in the live electrical substation.
On appeal, we were advised that the prosecution which had been commenced against
a member of the staff of Public Works had been withdrawn,
and that Public Works
was never prosecuted in relation to the tragic accident despite what was, on the
evidence, the instrumental
part played by it. The absence of prosecution of
other parties, on whom the appellant had reasonably relied, underlines the
cogency
of argument presented on appeal that the sentence gave rise to a
justifiable sense of injustice.
2. The appellant and in particular Mr Farrugia were misled. They were induced to
believe the substation was not live and were lulled
into a false sense of
security by the failure of Public Works to specify and warn, orally and/or in
writing in the tender/contract
documentation, that the substation was live. The
foregoing failures were further compounded by Public Works then actually
advising
and authorising Mr Farrugia to break into the substation in order to
gain access. That authorisation was given in a situation where
Public Works as
far as the appellant was advised had sole occupation and control of the site and
well knew the sub-station was live.
...
| 122 | In the present case the act
of the unknown person in bolting an inadequate stop on the gate was quite
independent of the appellant's
failure to include in the design any or any
adequate devices to prevent the western leaf of the west gate falling during
manual operation.
As we earlier stated, this was a circumstance where either the
acts of the unknown person or the omissions of the appellant would
have caused
the risk. We do not understand how there could have been a justifiable sense of
grievance in circumstances where, as
the primary judge found, the appellant's
omissions were a substantial cause of the risk and where those omissions
operated independently
of the inadequate bolted stop to create a risk to health
and safety. |
| 123 | We do not consider there is
any basis to conclude that, because an unknown person's acts quite independently
created a risk of the
gate falling and which did not constitute a novus actus
and did not constitute a contribution to the risk created by the appellant,
we
should reduce the sentence imposed on the appellant. It was a serious risk,
manifested by the death of Ms Maybury. |
| 124 | Finally, could we make the
following observations. These unfortunate proceedings illustrate the necessity
for anyone whose business
operations come within the provisions of the OHS Act
to have regard to those obligations and responsibilities that are imposed by
the
Act upon them. In particular, these proceedings illustrate that there may not be
an exact correlation between the task to be
performed by the business and the
responsibilities and obligations imposed upon it by the Act. The appellant gave
no thought to the
inclusion within its design of any stopping mechanism to
ensure that the gate leaves did not come out of the portals that supported
them.
Yet this is precisely what s 11 of the OHS Act required it to do. It is
imperative, in our opinion, that any business undertaking
whose operations are
governed by the provisions of the Act is conscious at all times of the
obligations and responsibilities imposed
by the Act. This is particularly so
when work is carried out or goods are supplied under a contract. The contractual
terms may not
create obligations that are co-extensive with those created by the
OHS Act. |
| 125 | We ask that these comments
be drawn to the attention of the responsible officer within the WorkCover
Authority of New South Wales
to ascertain what steps might be taken to create
awareness within industry of the fact that business operations, in particular
involving
the design, manufacture or supply of plant or substances for use by
people at work, must comply with the provisions of s 11 of the
OHS Act. Of
course, at law one cannot contract out of obligations imposed by the Act.
|
| 126 | We would dismiss the appeal.
|
JUDGMENT OF MARKS J
| 127 | The factual matrix against
which these proceedings were conducted has been fully developed in the judgment
of Boland J, President
and Kavanagh J and it is unnecessary for me to refer to
it in any detail. |
| 128 | In essence, the charge
brought against the defendant under s 11 of the Occupational Health and
Safety Act 2000 ("the Act") is that it designed plant for use by people at
work and failed to ensure that the plant was safe and without risks to health
when
properly used. |
| 129 | The particulars of the
charge, which are set out in [7] of the majority judgment, focussed on the
circumstances that occurred on 14
October 2003. In essence, the appellant had
designed a gate structure without regard for any means that would preclude the
western
leaf passing through the midpoint of the gate opening and out of its
portal which had supported it, thus allowing the leaf to fall
and fatally injure
Ms Maybury who was assisting an employee to close the gates manually.
|
| 130 | The particulars of the
charge include, specifically, the following: |
[7]
...
(9) At the close of business on 14 October 2003, Mr Sheath attempted to close
the western leaf of the west gate. The electronic system
to close the west gate
failed to operate and Mr Sheath began to close the western leaf of the west gate
manually.
(10) Mr Sheath was assisted in closing the western leaf of the west gate
manually by Ms Melissa Maybury.
(11) Whilst Mr Sheath and Ms Maybury were trying to close the western leaf of
the west gate manually, the western leaf passed through
the midpoint of the gate
opening and out of its portal, falling on Ms Maybury and causing her fatal
injuries.
(12) There was a risk of the western leaf of the west gate falling on either Mr
Sheath or Ms Maybury.
(13) The gate plant was not safe and without risks to health when properly used.
(14) The defendant failed to include in the design any or any adequate devices
to prevent the western leaf of the west gate falling
during manual operation.
(15) By reason of the defendant's omissions, persons were at risk of being
injured (including fatally injured) whilst they were operating
the west gate
manually.
(16) On 14 October 2003 Melissa Maybury was fatally injured and Jason Sheath was
placed at risk of injury as a result of the defendant's
omissions.
The significance of particulars
| 131 | The particularisation of the
charge brought against the appellant is, in my opinion, of fundamental
significance in determining these
appeal proceedings. I discussed the question
of particularisation in the context of proceedings under the Act in Sacco
Builders Pty Ltd v Inspector Chaston [2009] NSWIRComm 153. My judgment in
those proceedings was in dissent. However, the judgment of the Full Bench in
those proceedings was quashed by the
New South Wales Court of Appeal by consent
of the parties, including, obviously, the respondent prosecutor by consent order
made
by the Registrar on 19 April 2010 in Matter No 40417/09. Accordingly, I
consider myself at liberty to rely on my dissenting judgment
in those
proceedings. I refer, without repeating them, to [98] to [108] of that judgment.
|
| 132 | Although not all of the
particulars of an offence with which the appellant was charged may represent
essential elements or ingredients
of the offence, nevertheless it is essential
that the prosecution establish those particulars of the offence with which the
appellant
was charged that are sufficient to make good the charge.
|
| 133 | I would apprehend that this
approach is consistent with that adopted by the High Court of Australia in
Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531.
|
| 134 | In the joint judgment of
French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, their Honours said as
[26]: |
[26] The common law requires that a defendant is entitled to be told not only of
the legal nature of the offence with which he or
she is charged, but also of the
particular act, matter or thing alleged as the foundation of the charge (
Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 489 per Dixon J;
[1937] HCA 77). In John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42;
(1987) 163 CLR 508, it was explained that the older cases established that an
information could be quashed as insufficient in law if it failed to inform
the
justices of both the nature of the offence and the manner in which it had been
committed ( John L Pty Ltd at 519). In more recent times the rationale of
that requirement has been seen as lying in the necessity of informing the court
of
the identity of the offence with which it is required to deal and in
providing the accused with the substance of the charge which
he or she is called
upon to meet ( John L Pty Ltd at 519). The common law requirement is that
an information, or an application containing a statement of offences, "must at
the least
condescend to identifying the essential factual ingredients of the
actual offence" ( John L Pty Ltd at 520). These facts need not be as
extensive as those which a defendant might obtain on an application for
particulars ( De Romanis v Sibraa [1977] 2 NSWLR 264 at 291-292, referred
to in John L Pty Ltd at 520). In Johnson v Miller , Dixon J
considered that an information must specify "the time, place and manner of the
defendant's acts or omissions" (at 486).
McTiernan J referred to the
requirements of "fair information and reasonable particularity as to the nature
of the offence charged"
(at 501; and see Smith v Moody [1903] 1 KB 56 at
60).
| 135 | Accordingly, the charge
brought against the appellant as particularised was confined to what occurred on
14 October 2003. The failure
to design the structure so as to ensure that it was
safe and without risks to health when properly used consisted of the failure
"to
include in the design any or any adequate devices to prevent the western leaf of
the west gate falling during manual operation."
The unsafe nature of the plant
and the risks to health, which are at the heart of s 11 of the Act, were
confined to what happened on 14 October 2003. As at that date, there had been
installed by someone, whose identity is apparently
unknown, at the instigation
of the project manager for the construction of the concrete batching plant, some
stops that had been
fixed to some of the gate leaves. These included a bolted
stop that had been affixed to the western leaf, the subject of the charge
as
particularised. That bolted stop failed to preclude the western leaf passing
through the midpoint of the gate opening and out
of its portal. The bolted stop
was found by the trial judge to have been "grossly inadequate and incapable of
providing the mechanical
strength required to limit the travel of the gate ...
". I add for completeness that the bolted stop and its method of attachment
to
the western leaf were not designed by the appellant.
|
| 136 | The fundamental question for
determination in these proceedings is whether or not the installation by someone
else of a grossly inadequate
bolted stop was exculpatory of the appellant so as
to require that the proceedings brought against it under s 11 of the Act should
have been dismissed. |
| 137 | For the purpose of the
discussion which follows I shall assume, as found by the majority judgment, that
the appellant in designing
the gate structure was required by the provisions of
s 11 of the Act to have ensured that the design included some mechanism to
preclude the western leaf from passing through the portal when the gate
was
required to be operated manually. In this regard I agree generally with the
majority judgment. |
Causation
| 138 | As is pointed out commencing
at [91] of the majority judgment, there must be established a causal connection
between the conduct of
the appellant and the risk to safety as particularised in
the charge brought against the appellant. |
| 139 | An appropriate starting
point for a discussion of causation in the context of assessing legal
responsibility is the judgment of Mason
CJ in the High Court of Australia in
March v Stramare (E&MH) Pty Ltd [1991] HCA 12; (1990-1991) 171 CLR
506. At [5] his Honour said, in a passage that has been universally cited with
approval: |
[5] It has often been said that the legal concept of causation differs from
philosophical and scientific notions of causation. That
is because "questions of
cause and consequence are not the same for law as for philosophy and science",
as Windeyer J. pointed out
in The National Insurance Co. of New Zealand Ltd.
v. Espagne [1961] HCA 15; (1961) 105 CLR 569, at p 591. In philosophy and
science, the concept of causation has been developed in the context of
explaining phenomena by reference
to the relationship between conditions and
occurrences. In law, on the other hand, problems of causation arise in the
context of
ascertaining or apportioning legal responsibility for a given
occurrence. The law does not accept John Stuart Mill's definition of
cause as
the sum of the conditions which are jointly sufficient to produce it. Thus, at
law, a person may be responsible for damage
when his or her wrongful conduct is
one of a number of conditions sufficient to produce that damage: see McLean
v. Bell (1932) 147 LT 262, per Lord Wright at p 264; Sherman v. Nymboida
Collieries Pty. Ltd. [1963] HCA 63; (1963) 109 CLR 580, per Windeyer J. at pp 590-591.
| 140 | The Courts have readily
acknowledged the difficulty of propounding principles to assist in the
establishment of a relevant causal
connection at law. See, for example, the
comments of Kirby J in the High Court of Australia in Chappel v Hart
(1998) 195 CLR 232 at 264 and following. |
| 141 | The contemporary statement
of principle in the High Court of Australia is that of Mason CJ in March
. His Honour's approach and reasoning has been accepted and adopted
throughout Australia. See, for example, the several judgments
of the members of
the High Court in Chappel . |
| 142 | The primary test, described
as the "but for" test, asks whether or not something would have happened but for
a particular act or omission
of someone else. This is described as a "negative"
test (see, for example, Mason CJ in March at [20]). It is said to have
the effect of "screening out and eliminating from further consideration factors
which made no difference
to the outcome." (See " Chance Would be a Fine
Thing: Proof of Causation and Quantum in an Unpredictable World " Melbourne
University Law Review[1999] MelbULawRw 24; , 23 Melb.U.L.REV. 557 by Professor David Hamer.)
|
| 143 | However, it is also widely
recognised and accepted that the "but for" test is not to be used exclusively in
determining whether there
is an appropriate causal connection at law. This is
particularly in circumstances where a particular incident may have resulted from
more than one cause or a complex chain of circumstances. So much was stated by
Mason CJ in March at [22] and following.
|
The cases demonstrate the lesson of experience, namely, that the test, applied
as an exclusive criterion of causation, yields unacceptable
results and that the
results which it yields must be tempered by the making of value judgments and
the infusion of policy considerations.
(At [22]).
| 144 | Furthermore, the attribution
of liability will involve questions of policy in the context of the particular
legal framework in which
the proceedings are being considered. In Chappel
, Gummow J illustrated the problem by reference to an example given in a
judgment in the House of Lords. A decorator working alone
in a house went out to
buy wallpaper, left the front door unlocked, a thief entered and stole certain
items. Obviously, the thief
would be criminally liable for the theft. However,
the decorator was held liable in negligence because he breached his duty to take
reasonable care to guard against thieves entering the premises.
|
| 145 | Both in March and in
Chappel , the High Court of Australia has emphasised the need to take
into account considerations of policy and values and to approach the
matter
based on notions of "common sense" which are to be applied to the facts of the
case in determining what was described by Mason
CJ as "a question of fact". (
March at [17] and [18]) |
| 146 | The seminal consideration of
causation in the context of criminal proceedings is often considered to be the
judgment of the High Court
of Australia in Royall v the Queen [1991] CHA
27; [1991] HCA 27; (1991) 172 CLR 378. The judgments of the members of the High Court must be
seen, however, in the context of the factual circumstances that gave rise
to
those proceedings and, importantly, the fact that three alternative scenarios
were left to the jury for its consideration. The
accused had been involved in a
violent argument with a woman in her apartment on the sixth floor of a building.
There was evidence
that he had assaulted her. There was evidence of a forcible
entry into a bathroom and of a struggle in the bathroom, including evidence
of
blood marks and the like. The woman had fallen from the bathroom window and had
died. Three alternative factual scenarios were
put to the jury by the trial
judge. The accused was convicted and the appeal to the High Court concerned the
adequacy and the appropriateness
of the directions given.
|
| 147 | Mason CJ held that the
culpability of the accused was not in any way diminished because the woman's
death may have occurred because
she fell or escaped from the window instead of a
direct result of the assault. |
| 148 | Brennan J said that the
accused's conduct, whether by act or omission |
must contribute significantly to the death of the victim .... It need not be the
sole, direct or immediate cause of death. However,
when the death is not caused
directly by the conduct of the accused but by something done by the victim or by
a third person in response
to the conduct of the accused, there is a question
whether the chain of causation has been broken. (At 398).
| 149 | Deane and Dawson JJ spoke of
the accused's conduct being "a substantial or significant cause of death". (At
411). |
| 150 | McHugh J thought that it was
appropriate that the High Court should engage in a comprehensive review of the
principles of causation
in the context of the criminal law. His Honour's
judgment, commencing at p 441, contains an interesting and comprehensive
discussion
of the principles of causation. |
| 151 | There are a number of
English authorities that deal with statutory offences framed in terms of strict
liability and which involve
a consideration of questions of causation. For the
purpose of these reasons for judgment, I shall deal only with one of these
cases,
a decision of the House of Lords in Alphacell Ltd v Woodward
[1972] UKHL 4; [1972] 2 All ER 475; (1972) AC 824, (1972) 2 WLR 1320. I should add for
completeness that there are a number of other more recent authorities, some of
which are collected in the article
" Clean Water and Muddy Causation: Is
Causation a Question of Law or Fact, or Just a Way of Allocating Blame? " by
Nicole Pasfield published in Crim.L.R.1995, Sep, 683-694.
|
| 152 | Part of Alphacell's
operations included the use of settling tanks. Pumps that were attached to the
tanks, which prevented them overflowing
into a river, failed because they became
blocked with vegetable matter. This occurred notwithstanding regular inspections
by Alphacell's
employees. Alphacell was charged with causing pollution to the
river and convicted. It contended on appeal, ultimately to the House
of Lords,
that the overflow had taken place without its knowledge and without any
negligence on its part. The House of Lords held
that in construing the
legislation questions of whether Alphacell had knowledge or had acted
negligently were irrelevant because
of the strict nature of the legislation.
There are several observations in the speeches of the Law Lords that touch upon
the question
of causation. |
| 153 | Lord Wilberforce, in
discussing earlier authority dealing with a case where an unauthorised person
had opened the valve for purposes
unconnected with the defendant's business and
in which it had been concluded that "the opening of the valve was of so powerful
a
nature that the conduct of the appellant was not a cause of the flow of oil"
said: |
I do not desire to question this conclusion, but it should not be regarded as a
decision that in every case the act of a third person
necessarily interrupts the
chain of causation initiated by the person who owns or operates the installation
or plant from which the
flow took place. The answer to such questions is one of
degree and depends upon a proper attribution of responsibility for the flow
of
the polluting matter. ([1972] 2 All ER 475 at 479).
| 154 | Lord Pearson referred to
earlier authority that includes passages that I regard as relevant to the
determination of these proceedings.
His Lordship said:
|
The appellants' other contention is that they did not cause the polluted water
to flow into the river. I think that their main grounds
for this contention are
that they did not intend the polluted water to flow into the river, they did not
know it was happening and
(according to the assumption that has been made) it
did not happen by reason of any negligence on their part. On the general
question
of causation there is an illuminating passage in the speech of Lord
Shaw of Dunfermline in Leyland Shipping Co v Norwich Union Fire Insurance
Society ([1918] AC 350 at 369, [1918-19] All ER Rep 433 at 453). He said:
"To treat proxima causa as the cause which is nearest in time is out of the
question. Causes are spoken of as if they were as distinct
from one another as
beads in a row or links in a chain, but-if this metaphysical topic has to be
referred to-it is not wholly so.
The chain of causation is a handy expression,
but the figure is inadequate. Causation is not a chain, but a net. At each point
influences,
forces, events, precedent and simultaneous, meet; and the radiation
from each point extends infinitely. At the point where these
various influences
meet it is for the judgment as upon a matter of fact to declare which of the
causes thus joined at the point of
effect was the proximate and which was the
remote cause."
This passage may have been partly inspired by the argument of R A Wright KC
([1918] AC at 352, 353). In Yorkshire Dale Steamship Co Ltd v Minister of War
Transport, The Coxwold ([1942] 2 All ER 6 at 9, [1942] AC 691 at 698),
Viscount Simon LC said:
"The interpretation to be applied does not involve any metaphysical or
scientific view of causation. Most results are brought about
by a combination of
causes, and a search for 'the cause' involves a selection of the governing
explanation in each case".
Lord Wright said ([1942] 2 All ER at 15, [1942] AC at 706):
"This choice of the real or efficient cause from out of the whole complex of the
facts must be made by applying commonsense standards."
In Cork v Kirby Maclean Ltd ([1952] 2 All ER 402 at 407) Denning LJ said:
"It is always a matter of seeing whether the particular event was sufficiently
powerful a factor in bringing about the result as
to be properly regarded by the
law as a cause of it ... "
([1972] 2 All ER 475 at 487-8)
It seems plain to me that the appellants caused the pollution by the active
operation of their plant. They certainly did not intend
to cause pollution but
they intended to do the acts which caused it. What they did was something
different in kind from the passive
storing of effluent which could not discharge
into the river save by an act of God or, as in Impress (Worcester) Ltd v Rees
[1971] 2 All ER 357, by the active intervention of a stranger, the risk of
which could not reasonably have been foreseen. ([1972] 2 All ER 475 at 490).
| 156 | The absence of criminal
intent will, to some extent, impact upon a consideration of some of the
authorities. |
The novus actus interveniens principle
| 157 | Stated in its simplest form,
a novus actus interveniens is something that will break or interfere with a
chain of causation to such
an extent that it will have an exculpatory effect.
Cases involving a consideration of the application of this principle will
involve
circumstances such as incorrect or inappropriate medical treatment or a
failure to give medical treatment to someone who has been
injured, to rescue
cases where a third party is injured while attempting to rescue someone who has
been wrongly put at risk, and
circumstances generally where there are two or
more causes of injury or where there are unintended consequences. In this latter
regard,
cases include a person who had been assaulted, left by the seashore and
drowned in a rising tide. Accordingly, in the context of
these proceedings the
question is whether or not the fact that the inadequate and inappropriately
fixed bolted stop undertaken by
someone else intervened so that it cannot be
said that the appellant's failure to include within the design a stopping
mechanism
relevantly caused the tragic circumstances which occurred on 14
October 2003. In dealing with the authorities that have considered
the novus
actus interveniens principle, it will be necessary to bear in mind that these
proceedings do not involve any criminal act
that includes any element of mens
rea. Although the High Court of Australia seems to have eschewed any notion of
absolute liability
(see [18] in Kirk ), the offences created by the Act,
and in particular that under s 11, should be seen as offences in the nature of
strict liability not involving any consideration of criminal intent.
|
| 158 | In March , McHugh J
discussed briefly the principle of novus actus interveniens. Significantly, his
Honour said: |
The novus actus interveniens doctrine has been used to limit the liability of a
tortfeasor because he or she is perceived as having
no moral responsibility for
damage when a fully-informed actor, not acting under constraint or pressure
flowing from the tortfeasor's
actions, has intervened and produced that damage
even though it would not have occurred but for the tortfeasor's act or omission.
For the same reasons, in a criminal case, a person should not be held liable for
a wrongful act or omission which has caused harm
in a "but for" sense if that
harm was the product of a novus actus interveniens or was not a reasonably
foreseeable consequence of
the act or omission. (At 448-9).
| 159 | There is a discussion of the
concept of novus actus interveniens in the judgment of Mason CJ in March
commencing at 517. Mason CJ gives as an example:
|
a negligent act by A which set the scene for a deliberate wrongful act by B who,
fortuitously and on the spur of the moment, irresponsibly
does something which
transforms the outcome of A's conduct into something of far greater consequence,
a consequence not readily foreseeable
by A. In such a situation, A's act is not
a cause of that consequence, although it was an essential condition of it. No
doubt the
explanation is that the voluntary intervention of B is, in the
ultimate analysis, the true cause, A's act being no more than an antecedent
condition not amounting to a cause. (At 517).
| 160 | There is a similar
observation in the judgment of Windeyer J in Faulkner v Keffalinos (1971)
45 ALJR 80 at 85. His Honour said: |
There is I think a critical distinction between a supervening happening that
prevents a particular damage occurring as a result of
the tort and a supervening
happening that causes the harm caused by the tort to have added gravity. In the
first class of case the
supervening event diminishes the damages which flow from
the tort: in the second class it merely adds to them, so that the tortfeasor
responsible for the first accident remains liable for the harm he caused, which
is not merged in the combined result of his wrongdoing
and the later event. The
distinction is not always either easily made or preserved.
| 161 | In March , Deane J
did not have occasion to deal specifically with the concept of novus actus
interveniens. However, his Honour applied observations
of Lord Reid in
Stapley v Gypsum Mines Limited [1953] UKHL 4; (1953) AC 663 at 681, which directed
attention in the case of several possible causes to the need to "discriminate
between those faults which must
be discarded as being too remote and those which
must not. Sometimes it is proper to discard all but one and to regard that one
as
the sole cause, but in other cases it is proper to regard two or more as
having jointly caused the accident. I doubt whether any
test can be applied
generally." |
| 162 | There are English
authorities that use language to similar effect. One, which is often cited, is
Regina v Smith (1959) 2 QB 35, a decision of the Courts-Martial Appeal
Court. The judgment of the Court was by Lord Parker CJ. A soldier had been
stabbed during
a fight in a barrack room. Immediately after being stabbed, the
soldier was dropped twice whilst being carried to the medical reception
station
for treatment. At the reception station, he was given treatment that was
incorrect. The soldier, who had been charged with
his murder sought to argue
that the incidents that occurred after the stabbing, namely the fact that the
deceased soldier had been
dropped and that he had been given inappropriate
medical attention, constituted a novus actus interveniens so as to exclude
guilt.
This submission was rejected by the Court. Lord Parker CJ said in part:
|
It seems to the Court that if at the time of death the original wound is still
an operating cause and a substantial cause, then the
death can properly be said
to be the result of the wound, albeit that some other cause of death is also
operating. Only if it can
be said that the original wounding is merely the
setting in which another cause operates can it be said that the death does not
result
from the wound. Putting it another way, only if the second cause is so
overwhelming as to make the original wound merely part of
the history can it be
said that the death does not flow from the wound.
| 163 | I observed that this
reference to a first incident being merely part of the history is in terms
similar to that of an antecedent condition
not amounting to a cause described by
Mason CJ in March v Stramare , formerly referred to.
|
| 164 | Reg v Cheshire [1991]
3 All ER 670; (1991) 1 WLR 844 is a decision of the Court of Appeal, England
that considered the application of the novus actus interveniens principle in the
context
of criminal proceedings. The defendant had shot a person during the
course of an argument. The victim underwent surgery in hospital
where a
tracheotomy tube was inserted into his windpipe. Some weeks later, his condition
deteriorated and he died two months after
the incident. The victim's windpipe
was found on post mortem examination to have become obstructed because of
narrowing near the
site of the tracheotomy scar. Evidence was given in the
proceedings that there had been a failure on the part of the treating doctors
to
have diagnosed and appropriately treated the victim's deteriorating condition.
The defendant was found guilty of murder and appealed.
|
| 165 | The substantive question for
determination was whether or not there was the necessary causal relationship
between the shooting of
the victim by the defendant and the victim's ultimate
death so as to found a conviction for murder. |
| 166 | The principal judgment was
delivered by Beldam LJ. At pp 4-5 his Lordship said:
|
In the criminal law, and in particular in the law of homicide, whether the death
of a deceased was the result of the accused's criminal
act is a question of fact
for the jury, but it is a question of fact to be decided in accordance with
legal principles explained
to the jury by the judge. We think the matter cannot
be better put than it was by Robert Goff LJ in R v Pagett [1983] EWCA Crim 1; (1983) 76 Cr
App R 279 at 288, where he said:
"In cases of homicide, it is rarely necessary to give the jury any direction on
causation as such. Of course, a necessary ingredient
of the crimes of murder and
manslaughter is that the accused has by his act caused the victim's death. But
how the victim came by
his death is usually not in dispute. What is in dispute
is more likely to be some other matter: for example, the identity of the
person
who committed the act which indisputably caused the victim's death; or whether
the accused had the necessary intent; or whether
the accused acted in
self-defence, or was provoked. Even where it is necessary to direct the jury's
minds to the question of causation,
it is usually enough to direct them simply
that in law the accused's act need not be the sole cause, or even the main
cause, of the
victim's death, it being enough that his act contributed
significantly to that result. It is right to observe in passing, however,
that
even this simple direction is a direction of law relating to causation, on the
basis of which the jury are bound to act in concluding
whether the prosecution
has established, as a matter of fact, that the accused's act did in this sense
cause the victim's death.
Occasionally, however, a specific issue of causation
may arise. One such case is where, although an act of the accused constitutes
a
causa sine qua non of (or necessary condition for) the death of the victim,
nevertheless the intervention of a third person may
be regarded as the sole
cause of the victim's death, thereby relieving the accused of criminal
responsibility. Such intervention,
if it has such an effect, has often been
described by lawyers as a novus actus interveniens. We are aware that this
time-honoured
Latin term has been the subject of criticism. We are also aware
that attempts have been made to translate it into English; though
no simple
translation has proved satisfactory, really because the Latin term has become a
term of art which conveys to lawyers the
crucial feature that there has not
merely been an intervening act of another person, but that that act was so
independent of the
act of the accused that it should be regarded in law as the
cause of the victim's death, to the exclusion of the act of the accused.
At the
risk of scholarly criticism, we shall for the purposes of this judgment continue
to use the Latin term."
| 167 | Beldam LJ sought to
differentiate the consideration of questions of causation in criminal matters
from the principles established
in connection with civil proceedings. In this
latter regard, his Lordship noted the tendency to refine and distinguish varying
degrees
of blameworthiness that was not appropriate to be undertaken in the
context of the criminal law, particularly when considering the
impact of medical
treatment and the acts or omissions of medical practitioners when determining
whether the required causal nexus
has been established. After considering a
number of authorities including a decision of the Supreme Court of Victoria (
Reg v Evans and Gardiner (No 2) [1976] VicRp 53; [1976] VR 523), his Lordship said:
|
Where the law requires proof of the relationship between an act and its
consequences as an element of responsibility, a simple and
sufficient
explanation of the basis of such relationship has proved notoriously elusive.
In a case in which the jury have to consider whether negligence in the treatment
of injuries inflicted by the accused was the cause
of death we think it is
sufficient for the judge to tell the jury that they must be satisfied that the
Crown have proved that the
acts of the accused caused the death of the deceased,
adding that the accused's acts need not be the sole cause or even the main
cause
of death, it being sufficient that his acts contributed significantly to that
result. Even though negligence in the treatment
of the victim was the immediate
cause of his death, the jury should not regard it as excluding the
responsibility of the accused
unless the negligent treatment was so independent
of his acts, and in itself so potent in causing death, that they regard the
contribution
made by his acts as insignificant.
It is not the function of the jury to evaluate competing causes or to choose
which is dominant provided they are satisfied that the
accused's acts can fairly
be said to have made a significant contribution to the victim's death. We think
the word "significant"
conveys the necessary substance of a contribution made to
the death which is more than negligible. (At p 7)
| 168 | There is another decision of
the English Court of Appeal to which it is useful to refer, Knightley v Johns
[1981] EWCA Civ 6; [1982] 1 All ER 851; (1982) 1 WLR 349. These were civil proceedings in which
a plaintiff police officer claimed damages arising out of a motor accident. A
motor vehicle,
which had been driven negligently, overturned in a tunnel. A
police inspector who had arrived at the scene of the accident omitted
to close
the tunnel to traffic and ordered the plaintiff police officer to drive a
motorcycle against the flow of the traffic in
order to block further traffic
entering the tunnel. In doing so he was struck by a motor vehicle and injured. A
question for determination
on appeal was whether or not the plaintiff's injuries
were caused relevantly by the motorist who had overturned in the tunnel or
by
the police inspector who had failed to ensure that the tunnel had been closed.
|
| 169 | The principal judgment in
the Court of Appeal was given by Stephenson LJ. In determining the matter, his
Lordship said in part: |
The question to be asked is accordingly whether that whole sequence of events is
a natural and probable consequence of Mr Johns's
negligence and a reasonably
foreseeable result of it. In answering the question it is helpful but not
decisive to consider which
of these events were deliberate choices to do
positive acts and which were mere omissions of failures to act; which acts and
omissions
were innocent mistakes or miscalculations and which were negligent
having regard to the pressures and the gravity of the emergency
and the need to
act quickly. Negligent conduct is more likely to break the chain of causation
than conduct which is not; positive
acts will more easily constitute new causes
than inaction. Mistakes and mischances are to be expected when human beings,
however
well trained, have to cope with a crisis; what exactly they will be
cannot be predicted, but if those which occur are natural the
wrongdoer cannot,
I think, escape responsibility for them and their consequences simply by calling
them improbable or unforeseeable.
He must accept the risk of some unexpected
mischances: see Ward v TE Hopkins & Son Ltd [1959] EWCA Civ 4; [1959] 3 All ER 225 at
244[1959] EWCA Civ 4; , [1959] 1 WLR 966 at 984 per Willmer LJ and Chadwick's case [1967] 2 All ER
945 at 952, [1967] 1 WLR 912 at 921 per Waller J. But what mischances?
The answer to this difficult question must be dictated by common sense rather
than logic on the facts and circumstances of each case.
In this case it must be
answered in the light of the true view to be taken of the events leading up to
Inspector Sommerville's acts,
or rather his act and omission, and the
plaintiff's, and PC Easthope's, acts. I have expressed my view of all these
links in the
chain leading from Mr Johns's negligence to the plaintiff's
collision with Mr Cotton. I have decided, respectfully disagreeing with
the
judge, that the inspector was negligent in failing to close the tunnel and,
respectfully agreeing with the judge, that the plaintiff
was not negligent in
riding the wrong way after being ordered to do so by the inspector or in
deciding on the spur of the moment
to ride his motor cycle close to the wall in
lane 1.
I am also of the opinion that the inspector's negligence was not a concurrent
cause running with Mr Johns's negligence, but a new
cause disturbing the
sequence of events leading from Mr Johns's overturning of his car to the
plaintiff's accident and interrupting
the effect of it. This would, I think,
have been so had the inspector's negligence stood alone. Coming as it did on top
of the muddle
and misunderstanding of Mr Williams's telephone call and followed
by the inspector's order to remedy his own negligence by a dangerous
manoeuvre,
it was the real cause of the plaintiff's injury and made that injury too remote
from Mr Johns's wrongdoing to be a consequence
of it. (At 865-6)
| 170 | Although these were civil
proceedings involving a claim for damages and although questions of remoteness
were inherently involved
in the approach of Stephenson LJ, I am attracted by his
Lordship's consideration of whether the "whole sequence of events is a natural
and probable consequence" of the negligence of the first defendant and his
Lordship's observations that positive acts would more
easily break the chain of
causation than inaction. Finally, there is the reference to whether or not there
are concurrent causes,
as opposed to a "new cause disturbing the sequence of
events". |
| 171 | For reasons that I shall
shortly state, these are matters that I regard as being of significance in
determining these proceedings.
|
| 172 | The manner in which the
Courts have endeavoured to express the circumstances in which an intervening act
will have the effect of precluding
criminal liability as described in cases such
as Cheshire has been the subject of criticism. For example, Alan Brudner,
Professor of Law at the University of Toronto, writing in the Canadian
Journal
of Law and Jurisprudence ( Owning Outcomes: On Intervening Causes, Thin
Skulls, and Fault-undifferentiated Crimes - 11 Can.J.L & Juris 89),
described the language used by Lord Beldam in Cheshire and similar
language used by other judges as being "notorious for its imprecision".
Professor Brudner cites descriptions of causes
couched in terms of "so
independent of [the accused's] acts, and in itself so potent in causing death,
that [the jury] regard the
contribution made by his acts as insignificant." He
asserts that it is not clear what Lord Beldam had in mind when he used the words
"independent" and "potent", particularly against a background of assessing
whether or not these words were used in the context of
outcomes that might be
seen to be foreseeable. One of the applications of the novus actus principle as
formulated by Professor Brudner
is directed to circumstances where the outcome
of certain action is rendered unforeseeable by the intervening cause. The other
application,
which I apprehend to be more relevant to these proceedings, is
where it is said that "the novus actus ... cancels the agent's responsibility,
becoming itself exclusively responsible for the outcome."
|
| 173 | Notwithstanding these
criticisms it seems to me that I must proceed on the basis of the approach
utilised by relevant authorities
and endeavour to apply those approaches within
my understanding of the language used to the circumstances of these proceedings.
|
| 174 | Before concluding my review
of some aspects of the novus actus principle, it is necessary to return again to
the distinction that
was made by Professor Brudner in his article to two of the
circumstances in which the principle operates, namely a consideration
of whether
or not the outcome is foreseeably created by the accused or whether the novus
actus operates to exclude responsibility
for the outcome. An example of the
former as given by Professor Brudner is circumstances where
|
A knocks B unconscious on the seashore, where he is later killed by a bolt of
lightning. The reasonably circumspect person would
foresee death by drowning as
likely but not death by lightning, and so A is not responsible for the specific
death that occurred.
Professor Brudner
describes the novus actus as precluding liability because "it renders the
outcome unforeseeable" and thus excludes
the initial cause as being the
proximate cause of death.
| 175 | In an article also published
in the same issue of the Canadian Journal of Law and Jurisprudence, Professor
Dennis Klimchuck analyses
these two approaches to the principle: " Causation,
Thin Skulls and Equality " (11 Can.J.L. & Juris 115). In referring to
the reasonable foreseeability test, Professor Klimchuck noted that it is to be
applied on a "retrospectively prospective"
basis. The test involved a
consideration of whether the accused knew or expected or should have known or
expected that what occurred
subsequent to his or her conduct was reasonably
foreseeable. |
| 176 | For reasons that I have
earlier stated I do not regard the factual circumstances that apply in these
proceedings as falling within
a consideration of whether or not what occurred
was reasonably foreseeable by the appellant. Those circumstances are more
appropriate
to that which occurred in R v Knutsen (1963) QdR 157 where
the accused assaulted his victim, left her on the road and she was subsequently
run over by a vehicle, suffering serious injuries.
The accused was held legally
liable for those injuries because they were reasonably foreseeable in all the
circumstances. |
| 177 | In describing the other
approach, which he called the "substantial operating cause test", Professor
Klimchuck said that in considering
what was involved
|
the question is whether the contribution of the accused's action to the injury
for which his actions were a cause-in-fact was of
some degree sufficiently
greater than merely being a cause sine qua non as to fairly hold him answerable
for that injury."
After discussing relevant
authorities, Professor Klimchuck concluded that:
whether the facts of the case invite reference to substantial or operative
causation, the test attempts to mark out from the list
of causes sine qua non
those that in some way stand out in the causal history of the event in question.
There are two important features
of this test which, as we will see, highlight
its differences with the reasonably foreseeability test. The first is that ...
it is
retrospective, starting with the event in question and looking back
through its causal history to see which causative factors made
the most
important contribution to its eventual occurrence. The second is that the
question of whether A caused some event is here
answered independently of what
the accused knew or expected, or should have known or expected.
Application of the principles to the circumstances of these proceedings
| 178 | Having regard to the general
discussion of the principles attaching to causation in criminal law and the
novus actus interveniens
principle, I now turn to consider the circumstances of
these proceedings. |
| 179 | I proceed firstly on the
basis that the Court is only concerned with the charge levelled against the
appellant as particularised.
It is confined to what occurred on 14 October 2003.
On that occasion, the fatal injury was caused by the fact that the western leaf
of the west gate fell when it came clear of the portal which supported it. That
leaf had a bolted stop affixed to it. The reason
why the leaf fell was that the
bolted stop which had been affixed to it was "grossly inadequate and incapable
of providing the mechanical
strength required to limit the travel of the gate
...". That is, the only reason why the leaf fell was because the bolt failed.
The
bolt was not designed by the appellant nor was its specification or
attachment undertaken in any way either directly or indirectly
by the appellant.
|
| 180 | If the bolt had been
appropriately designed and fixed to the leaf, it would not have fallen. In
stating this conclusion, I readily
acknowledge that prior to the bolt having
been affixed to the leaf, there was no stopping mechanism at all in place, a
matter that
is derived from the failure of the appellant to comply with its
obligations under s 11 of the Act. |
| 181 | In reviewing the various
statements of principle contained within the authorities to which I have
referred, I am conscious that it
is easy to "cherry pick" those statements that
support a particular conclusion and that there are other statements of principle
that
might be used to support the opposite conclusion. I am also conscious that
the process upon which I am required to embark involves
an intuitive approach in
applying the relevant principles to the particular circumstances of these
proceedings. |
| 182 | In considering this matter,
I have striven to utilise some other factual situation, which has been the
subject of authoritative determination
by a Court, in order to derive some
assistance by way of analogy. On the one hand, one might consider the
circumstances that had
been confronted by the Courts in a number of cases where
a victim is wounded, and the wound has been treated negligently. To some
extent
it might be said that this is the case here. There was a defective design
perpetrated by the appellant. A third party sought
to rectify that situation. In
such a case, cases such as Cheshire , to which I have previously
referred, would require that the question be asked whether the grossly
inadequate bolt affixed some considerable
time after the original design had
been completed made such a significant contribution to the incident that
occurred so as to relieve
the appellant of culpability. In so determining, it
would be necessary to conclude that any such significant contribution made by
the third party would result in the conduct of the appellant as being able to be
characterised as insignificant in all of the circumstances.
|
| 183 | Another factual situation
that may be considered by way of analogy is that dealt with by the Western
Australian Court of Appeal in
Krakouer v the State of Western Australia
[2006] WASCA 81. A victim had been inflicted with a wound that would have
brought about his death. Whilst he lay on the ground, the accused struck
him on
the back of the head with a post and fractured the victim's skull. There was
medical evidence that although the victim would
die from the first wound, the
blow struck by the accused was also sufficient to have brought about his death.
|
| 184 | The judgment of Steytler P
contains a comprehensive review of many of the authorities on the question of
causation. |
| 185 | His Honour held that the act
of the accused made "a significant contribution to the death of the victim,
whether by accelerating the
victim's death or otherwise, and that it is for the
jury to decide whether or not the connection is sufficiently substantial." (At
[39]). His Honour concluded that there was sufficient medical evidence to
entitle the jury to have so found. |
| 186 | On one view, this is not a
case of combined and concurrent causes of the incident as dealt with in
Krakouer . The deficiency in design at the hands of the appellant was to
be remedied by the third party, which presumably designed as well
as affixed the
bolt to the western leaf. As is obvious, if the job had been attended to
correctly, the incident would not have occurred
and the defective design would
have been rectified. On the other hand, the third party failed to affix an
appropriate bolt in an
appropriate manner. As a matter of fact, it might be said
that on this basis the deficiency created by the appellant continued to
subsist.
In such a situation, it would then be necessary, applying the same approach as
was adopted in Krakouer, to determine whether there was a sufficiently
substantial connection between the defect in design undertaken by the appellant
and
the incident that occurred on 14 October 2003, having regard to all of the
factual circumstances. As is clear from the authorities,
this is a matter which
is to be determined having regard to the facts and enquiring whether, as a
matter of common sense, an ordinary
person would hold the original defect in the
design to be a cause of the incident. In so determining, "it is irrelevant that
it was
causa sine qua non of that event or occurrence" (per McHugh J in
Royall at 441-442). Put another way, it must be concluded that there was
a "sufficiently substantial [causal connection] to enable responsibility
for the
crime to be attributed to [the appellant]." (Per Deane and Dawson JJ in
Royall at 412). The reference to "the crime" is, of course, a reference
to the particular incident that occurred on 14 October 2003. Put
yet another
way, what was the substantial or significant cause of that incident at the time
and the place that it occurred? |
| 187 | In determining this matter
and in particular in considering whether or not the affixing of the defective
bolt was a novus actus interveniens
and was effective in breaking the chain of
causation so as to exculpate the appellant from a breach of s 11 of the Act, I
take into account the following matters: |
1) As is clear from the factual circumstances described in the majority
judgment, the appellant had completed its design work well
prior to 14 October
2003. The deficiency in its design had been recognised by the ultimate client
and an attempt was made with the
services of a third party to affix a bolted
stop to the western leaf.
2) The evidence is to the effect that the fatal injury that occurred on 14
October 2003 was caused by the failure of the grossly
inadequate bolted stop
which had been affixed to the leaf.
3) The failure to affix the bolted stop in an appropriate manner was conduct of
a kind different to that which had been undertaken,
or more correctly failed to
have been undertaken, by the appellant. The appellant's conduct consisted of an
omission to provide any
appropriate stopping mechanism.
4) Accordingly, the inappropriate affixing of an inappropriate bolt operated
independently of the situation created by the omission
of the appellant.
5) This intervening factor was due solely to the conduct of the third party
which was obviously grossly negligent, as found by the
trial judge.
6) In the circumstances, the substantial or significant cause of the incident
was the failure of the bolt which had been affixed
to the western leaf.
| 188 | An alternative consideration
of the matter would take into account the following:
|
1) The inappropriate fixing of the bolt to the western leaf did not transform
the failure of the appellant to adequately design the
structure as required by s
11 of the Act into something of any greater consequence being something not
readily foreseeable as being the result of that failure.
2) The failure of the appellant in carrying out its design remained an operating
cause of the incident, which arguably contributed
significantly to what
occurred.
| 189 | Having considered all of
these matters and having weighed the competing considerations as best I can, I
conclude that: |
1) In all the circumstances, it is not appropriate to apply the "but for" test
exclusively to determine the outcome of these proceedings,
for the reasons set
out in the several judgments of the High Court of Australia in March .
2) The grossly negligent affixing of the bolt was, in the circumstances, so
independent of the omission of the appellant and so potent
in causing the
incident that occurred that it rendered any contribution made by the appellant
to what occurred as being relevantly
insignificant for the purpose of assigning
culpability under the Act.
3) The failure on the part of the appellant was in the nature of an antecedent
condition, and part of the surrounding circumstances
upon which the gross
negligence of the third party operated so as to bring about the incident on 14
October 2003.
| 190 | In all the circumstances, I
would conclude that the prosecution has not established that the conduct,
whether by way of act or omission
of the appellant, was a sufficient cause in
law of the incident of 14 October 2003 and that the prosecution brought against
it should
have been dismissed. I would uphold the appeal accordingly.
|
ORDERS
| 191 | The Full Bench makes the
following orders: |
(1) The appeal is dismissed and the orders made by Haylen J on 9 June 2010 are
confirmed.
(2) The stay orders made by Boland J, President on 19 July 2010 in Simpson
Design Associates Pty Ltd v Inspector Ching [2010] NSWIRComm 98 are
dissolved.
(3) The appellant shall pay the respondent's costs of the appeal as agreed or
assessed.
_______________________________
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