AB Oxford Cold Storage Co Pty Ltd v Arnott - [2003] VSC 452

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8824 of 2002

AB OXFORD COLD STORAGE CO PTY LTD and ANOR	Appellants
v
JAMES O'NEIL ARNOTT	Respondent
No. 8825 of 2002
LUIZ FLEISZIG	Appellant
v
JAMES O’NEIL ARNOTT	Respondent

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JUDGE:	KELLAM J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 June 2003
DATE OF JUDGMENT:	18 November 2003
CASE MAY BE CITED AS:	AB Oxford Cold Storage Co Pty Ltd and Anor v Arnott
MEDIUM NEUTRAL CITATION:	[2003] VSC 452

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APPEAL FROM MAGISTRATE - Prosecution of employer under Occupational Health and Safety Act 1985 – Requirement under Act that proceedings brought by an inspector be authorised in writing – Whether or not institution of proceedings was authorised – Meaning of “adequate facilities” under s.21(2)(d) of Occupational Health and Safety Act – Whether public officer “consented to”, commission of offence by body corporate.

OCCUPATIONAL HEALTH AND SAFETY ACT 1985 ss.21(1)(2), 47, 48(2), and 52(1).

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APPEARANCES:

Counsel

Solicitors

For the Appellants

Mr P.G. Priest Q.C. with

Mr S.T. Russell

Gabor P. Fleiszig

For the Respondent

Mr O.P. Holdenson Q.C.

Victorian Workcover Authority Legal Services

HIS HONOUR:

Introduction

A.B. Oxford Cold Storage Co Pty Ltd (“Oxford”) operates cold storage facilities in Laverton North. Luiz Fleiszig is a public officer of Oxford.

On 29 December 1999, seven students who were working as casual employees of Oxford were affected adversely by carbon monoxide which had been produced by a forklift inside a freezer room at Oxford’s premises where they were working at the time. Subsequent to suffering symptoms of headache, dizziness, nausea and lethargy, four of those employees attended at the office of the defendant. They asked to speak to the general manager of Oxford, Mr Gabor Hilton who was known to some of them. Before Hilton came to speak to the workers, Fleiszig entered the reception area and they commenced to describe their symptoms to him. As they were doing so Hilton arrived. Hilton mentioned the possibility that their symptoms could have been caused by exhaust emission from a forklift. Hilton advised the workers to “take a break” and if they felt better to return to work, and if they did not, to go home. The remaining three employees who had not gone to the office continued working for a brief period of time, but as they felt progressively more unwell, they attended at the office and met up with the other four employees who had spoken to Hilton and to Fleiszig. All seven employees decided that they did not feel well enough to continue working and so they decided to go home. Later that day, they were all admitted to hospital suffering markedly elevated levels of carboxyhaemoglobin in their blood, a sign of substantial exposure to carbon monoxide.

The Charges

Subsequently, both Oxford and Fleiszig were charged with a number of offences under the Occupational Health and Safety Act 1985 (“the OHS Act”). The informant who brought the charges on behalf of the Victorian Workcover…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] VSC 452
Decision Date: 18 November 2003

CaseChat Overview and Summary

AB Oxford Cold Storage Co Pty Ltd was prosecuted under the Occupational Health and Safety Act 1985 for a failure to provide adequate facilities at its workplace. The case was heard in the Magistrates' Court of Victoria and subsequently appealed to the Supreme Court of Victoria. The appeal centred on two primary legal issues: firstly, whether the proceedings were properly authorised by an inspector, and secondly, the interpretation of "adequate facilities" as defined in section 21(2)(d) of the Act. Additionally, the court needed to determine if a public officer had consented to the commission of the offence by the body corporate.

The court found that the prosecution was not properly authorised as it lacked the necessary written authorisation from an inspector, as required by section 21(1) and (2) of the Occupational Health and Safety Act. The court also held that the facilities provided by AB Oxford Cold Storage Co Pty Ltd were indeed adequate, thereby negating the breach of section 21(2)(d). Furthermore, the court ruled that the concept of consent as described in section 52(1) of the Act did not apply in this instance, as it required a direct and explicit agreement to the commission of the offence, which was not demonstrated in the case.

The appeal was dismissed by the Supreme Court of Victoria, affirming the decision of the Magistrates' Court. The court concluded that the prosecution lacked the requisite authorisation and did not substantiate the allegations of inadequate facilities or consent by a public officer. Consequently, the charges against AB Oxford Cold Storage Co Pty Ltd were dismissed, and the case was returned to the Magistrates' Court with directions to quash the proceedings.

Orders