Adelaide Timber Co Pty Ltd v Shepherd (WorkSafe Western Australia) - [2001] WASCA 110

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: ADELAIDE TIMBER CO PTY LTD -v- SHEPHERD (WORKSAFE WESTERN AUSTRALIA) [2001] WASCA 110

CORAM: WALLWORK J

HEARD: 19 JANUARY 2001

DELIVERED : 6 APRIL 2001

FILE NO/S: SJA 1195 of 2000

BETWEEN: ADELAIDE TIMBER CO PTY LTD
Appellant
AND
TANYA GAI SHEPHERD (WORKSAFE WESTERN AUSTRALIA)
Respondent

Catchwords:

Industry - Health and safety - Machinery operating without a guard - Whether employer failed to provide sufficient safety measures - Whether supervision of safety measures required

Legislation:

Occupational Safety and Health Act 1984

Occupational Safety and Health Regulations 1996, Reg 4.37(1)(b)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Mr A C Pocock
Respondent: Ms C J Thatcher

Solicitors:

Appellant: Allan Pocock & Associates
Respondent: State Crown Solicitor

Case(s) referred to in judgment(s):

Bunnings Forest Products Pty Ltd & Ors v Tanya Gai Shepherd & Anor [1998] WASCA 119
Collins v State Rail Authority of NSW (1986) 5 NSWLR 209
Cullen v State Rail Authority (NSW) (1989) 31 IR 207
Leighton Contractors Pty Ltd & Ors v Simon Luigi Ridge & Anor [1998] WASCA 318

Case(s) also cited:

Chugg v Pacific Dunlop Limited (1990) 170 CLR 249
Ferrari v Neenan [2000] WASCA 191
Geraldton Fishermen's Co-operative Ltd v Munro [1963] WAR 129
Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100
Richardson v The Queen (1974) 131 CLR 116
RPS v The Queen (2000) 199 CLR 620
Weissensteiner v The Queen (1993) 178 CLR 217

WALLWORK J: The appellant in this matter was convicted on 3 October 2000 on a charge that as an employer it failed to provide measures to prevent, as far as practicable, the use of a main waste conveyor in a manner which could render that plant a hazard to a person at the workplace, contrary to Reg 4.37(1)(b) of the Occupational Safety and Health Regulations 1996 made under the Occupational Safety and Health Act 1984. The appellant now appeals from that conviction.
There are a number grounds of appeal, but in essence, the appellant claims that it should not have been convicted in the light of the fact that it had taken appropriate measures which will be discussed below to provide for the safety of its employees. The appellant contends that it had put in place measures to prevent, as far as was reasonably practicable, the use of the plant in a manner which could render it a hazard to persons at the workplace.
A Worksafe inspector, Mr Kirwan, visited the Witchcliffe Sawmill on 23 September 1999 and observed that at one place in the main waste conveyor there was an unguarded tensioning roller. The inspector asked the manager on site, Mr McNess, about the matter. Mr McNess indicated that there was a guard for the relevant machinery. However, the guard was not in place and was leaning against a shed nearby. The inspector said in evidence that there was a capacity for persons to become entangled in the relevant machinery and horrific injuries could result. The waste conveyor was operating at the time he was present and the guard was not in its correct position. When asked how the guard would be cleaned, the inspector said, "They would isolate the machine, lock it out, remove the guard, clean it, and put the guard back. They would then re‑energise the plant and bring it back into operation."
In this case, as stated above, the guard was not in its correct place, but the plant was operating. There was no signage in the area of the unguarded tensioning. The inspector said that the area was accessible to anyone who was in the vicinity. There were approximately ten people operating machinery at the mill at the time of his inspection.
The inspector conceded in evidence that he did not know when the guard had been removed. He was shown a company memo to the mill staff concerning the isolate/lockout and tag procedure which in essence made it mandatory that if access to the plant was required for the purpose of maintenance, cleaning or repair, then the plant was to be stopped and the energy source isolated and locked out before any person was authorised to access the plant. The policy applied to all the mill plant and all personnel, including contractors. It was acknowledged that it was the responsibility of the company to establish and enforce safety procedures and to train employees and contractors in the procedures.
The abovementioned safety procedure required the plant to be stopped and a danger tag put on the energy source by the person authorised and competent to carry out any work on the plant. The only person authorised to remove that tag was the person who placed it there.
The site manager, Mr McNess, told the inspector that the safety policy was in operation at that time and that prior to starting the plant up again, all guards had to be fitted back in place.
On 23 September 1999 the inspector asked Mr McNess if he could explain why the guard was off. Mr McNess said that he thought someone might have been cleaning.
The inspector said in evidence that he was satisfied that there was a safety policy in place at the relevant time, but he said, "it wasn't being enforced on that particular day." He said that was because the plant was operating and the guard was not in place. He admitted that he did not know how long before he had arrived at the mill that the guard had been removed. He said that the abovementioned protocol of the appellant for the safety of its employees was a good protocol to have. After the day in question he had attended at a training and induction course at the mill and was satisfied with the way it had been conducted. He conceded that if that was the form of induction for new employees, it was satisfactory.
The inspector said that on 23 September he had issued a notice saying that he wanted the default rectified by 5.00 pm on that day. That certificate had been given at 2.10 pm. He admitted that he had given the company in the vicinity of three hours to replace the guard.
The inspector said it was not uncommon to have guards such as the one in question bolted on, or requiring a special Allen type key to fit them. He had seen some instances where the guards were padlocked on, so they could not be removed. In other more technically advanced operations there were mechanisms so that when a guard is removed, a switch activates and the belt will not work until the guard is put back.
The appellant called the regional manager of the timber group, Mr Gioncola, to give evidence. Mr Gioncola was in charge of three mills, including the mill in question. He gave evidence concerning the safety policy and said that when a guard was removed it had to be put back before the machinery was started again. He said these instructions were given to all employees. When a new employee commenced work the manager was required to show him around and to instruct him on all the regulations which the company had laid down. The employee would be told to abide by the regulations. Refreshers were held every now and again to remind people to do the right thing concerning safety. He said the mill in question occupied a fairly large area. It was not possible for the manager to keep every employee under supervision all the time. If an employee was found not to have complied with the instructions concerning safety, he would be "terminated".
When asked if a guard was removed and not replaced as required by an employee, would that be something which would result in termination, Mr Gioncola said, "I would say so, yeah." When asked if it was difficult to enforce the instructions throughout the mill he said, "You know you can be at one place, but its so big and you can't see everyone at the same time." He said that when repairs or similar matters were being attended to, until the job was finished, no‑one was supposed to remove the safety tag. He said that while the machinery was working it had to have a guard on it. The guard should not be removed unless the machine was locked, switched off and had a tag on it. He had not been present on the day when the inspector noticed that the guard was off. However, he went to the mill two times a month, five times a month "or even two times a week sometimes, depending on when they need me, or I need them for something." He was not able to say in this case whether or not the guard had been removed for cleaning. He said he had "no idea".
It was put to the learned Magistrate for the defence that the company had had a policy in place which complied with all of the health and safety requirements. Further, employees were reminded at regular intervals of the requirement to comply with the safety rules. There had been a guard provided for the particular part of the machinery. It was submitted it was not possible to watch every employee every minute of the day; that the evidence had established that if an employee failed to comply with the very strict safety standards, the company would dismiss that employee.
For the prosecution it was put that there had been no evidence that cleaning was occurring at the relevant time, or, that that was the reason the guard had been off. It was submitted that the witness called by the appellant had not been able to offer any evidence concerning why the guard was off at the particular time. Mr Gioncola had not been the manager at the millsite in question. It was submitted that the evidence which had been called for the defence had not really gone to the question of what the manager on site did, or what actions he took, to ensure that the employees followed the procedures which were in place. Mr McNess had told the inspector on the day in question that he had had no idea why the guard was off. Mr Gioncola had not been in a position to know why it was off.
In convicting the appellant the learned Magistrate said that the question in issue was largely as to the practicality of the processes in place to ensure their maintenance. His Worship referred to the evidence of Mr Gioncola as having been to the effect that adherence to the safety measures was necessary. That if they were not adhered to, "there is likely to be in almost every case, a termination of the employment." He said that there had been no evidence as to how the guard had come to be misplaced on 23 September. His Worship said that there had been no evidence from the defence as to any supervision of the safety policy apart from the understandings and expectations of the employer and as to the risks of termination, should the policy not be complied with.
His Worship said that the inference from the guard being some 20 metres from the tensioning device was that:
"…given the distance in the circumstances from its proper location to its actual location…it has been removed for some significant time and had necessarily in those circumstances, not either momentarily or temporarily been moved, either in preparation for cleaning, or alternatively by omission to replace it following cleaning, or following some other need of which access was required."
The learned Magistrate said that:
"Against that evidence it would seem to me, that what was required here was there to be some credible evidence, falling from some person with direct supervision of the mill, which Mr Gioncola did not have, as to the day to day supervision of its employees as to matters pertaining to work, health and safety issues. There is, as I have indicated, no such evidence apart from the documents. There was no evidence, an absence of evidence, of any general practical supervision. And it’s the practicability requirement as to supervision that is the nub of this case. In all the circumstances I am satisfied and satisfied beyond a reasonable doubt, the complaint has been proved."
Although in my view and with respect, it was not a correct inference to make from the distance of the guard from its proper position that it had been removed for some significant time, in my view the learned Magistrate was correct when he said that there had been no evidence apart from the documents of any general practical supervision.
It was common ground on this appeal that the requirement to have in place measures to prevent "as far as practicable" hazards to employees, meant "as far as reasonably practicable". There is no absolute duty on an employer to provide and maintain a safe working environment.
The appellant relied in part on the evidence of Mr McNess which was to the effect that the guard might have been removed for cleaning. It was submitted that the question for the Magistrate had simply been whether the measures in place were adequate in all the circumstances? It was submitted that it was not for the defence to tender evidence to explain what had happened when there was no explanation known to it. One of the reasonable inferences which could be drawn was that the guard had been removed for cleaning. Reliance was placed on the evidence of Mr McNess and Mr Gioncola that the company policy was that if anybody was found not to follow the proper procedures, they would be dismissed. It was said that the appellant had had a proper system in operation and that somebody had breached it; that there had been no obligation on the defence in this case to lead evidence of supervision; that the Magistrate had said that there had been a safe system in place and that the inspector had acknowledged that. The system had included training sessions and refresher sessions.
With respect to the learned Magistrate's finding that there had been an absence of evidence of any general practical supervision, it was contended for the appellant that there had been no evidence of a failure to supervise. Rather, the evidence had been that it had been impossible to keep every employee under supervision all of the time. However, if an employee was found to have breached the safety procedures he would be dismissed. It was said that it had been implicit in the evidence that there had been supervision. That arose from the evidence that, "It's not possible to supervise everyone all of the time." It was said that nobody had said anything about how they supervised the operation and nobody had been asked that question; that if the prosecution wished to rely on that question they should have raised it at the hearing.
It was submitted for the appellant that the relevant guard had been installed originally and that the employees had been instructed on the correct procedure to follow. Mr McNess had given evidence that prior to starting a plant after cleaning, guards were to be fitted back. Mr Gioncola had given evidence that the machinery had to be turned off and guards put back, before it was started again. With respect to the Magistrate's comment that there had been no evidence of any general practical supervision, and that it was the practicability requirement as to supervision which was the nub of the case, it was submitted for the appellant that there was the threat of dismissal if the correct procedures were not complied with. The mill occupied a very large area and everybody could not be supervised all the time. The policy in place had been clear. When guards were taken off they were to be put back before the machinery was restarted.
Reliance was placed for the appellant on the words of Justice Miller in Leighton Contractors Pty Ltd & Ors v Simon Luigi Ridge & Anor [1998] WASCA 318, 23 November 1998, Supreme Court of Western Australia where his Honour referred to the reasons of Fisher P in Cullen v State Rail Authority (NSW) (1989) 31 IR 207 at 210. President Fisher said:
"In circumstances where it is surpassingly obvious that the elements of a safe system of work were not being observed, there is nevertheless a criminal onus upon the prosecution to prove the employer's failure. If at the end of the evidence there is any doubt raised as to whether the events were caused by the failure of the employer or some other unrelated factor, then the employer is entitled to the benefit of that doubt."
Reliance was also placed on the words of Justice Anderson, with whom Franklyn and Ipp JJ agreed, in Bunnings Forest Products Pty Ltd & Ors v Tanya Gai Shepherd & Anor [1998] WASCA 119, 5 May 1998. In that decision Justice Anderson at 12 of his reasons referred to the words of Street CJ in Collins v State Rail Authority of NSW (1986) 5 NSWLR 209 at 214 where the Chief Justice said:
"If the employer lays down a safe and proper practice and is not proven to have failed to use 'due diligence to see that it is observed' then 'failure by inferior employees, even those of a supervisory rank, to observe that practice on the particular occasion will not render the authority criminally liable for the offences charged against it.'"
In the present case the question is whether it was proved that the appellant failed to use "due diligence" to see that its system was observed.
In the Bunnings Forest Products case Anderson J said:
"Even if the constraints imposed upon the prosecution by the way in which it particularised its case are put to one side, still the prosecution had to prove and prove beyond reasonable doubt, that it was reasonably practicable for the appellant itself to have taken some measure, (other than the measures it actually took in providing supervisors such as McDonald, Sawyer and Kalleske to superintend the deceased's activities) which might have prevented the doing by the deceased of the thing which caused his death."
In this case and applying the reasoning in the decisions referred to above, in my opinion it was open to the Magistrate to find as he did that there was an absence of any practical supervision and that it was "the practicability requirement as to supervision" that was the nub of this case. The appellant had in the words of Street CJ, laid down a "safe and proper practice" but it had "failed to use due diligence to see that it (was) observed."
The machinery was found to have been operating without a guard. It was not sufficient in all the circumstances of this case for the manager of three mills (including the one in question), to come to the Court and say that safety procedures were in place. In my view, granted that the machinery was found by the inspector to have been working without a guard, in the absence of some evidence from the appellant as to how it had supervised the "safe and proper practice" to ensure that machinery was not operated without guards, it was a permissible inference for his Worship to draw that the appellant had failed to take steps which were reasonably practicable to prevent a hazard to the persons in the vicinity of the unguarded machinery. In a case like this, supervisory procedures are required. It is not sufficient to have a general procedure in place.
Counsel for the appellant said that there had been evidence that if a person was found to be not complying with the instructions he would be dismissed and that it was difficult to keep an eye on everybody all the time. But there was no evidence given at the trial as to what precautions, if any, were taken at the premises to ensure that the general safety procedures were supervised and enforced. The threat of dismissal if an employee was found not complying with the instructions, in my view, was not sufficient in all the circumstances.
On the evidence before the Magistrate although the proper system was in place, it was not being supervised at the particular time. Sir Lawrence Street's words "If the employer lays down a safe and proper practice and is not proven to have failed to use due diligence to see that it is observed" refer to the situation where there is a safe and proper practice, as in this case, laid down by the employer. The second leg is that the employer must be proved to have failed to use due diligence to see that the safe practice is observed. An inference of failure to use due diligence can be drawn by a Court in the absence of any evidence to the contrary where machinery is found to be operating without the proper guard in place, as was the position here. It is not sufficient to have a system in place with induction courses to new employees and refresher courses and the threat of dismissal, if there is no supervisory component of the procedure to see that it is observed.

Although the appellant has established ground 1 which is that the learned Magistrate erred in finding that the guard had been removed for some significant time, that does not invalidate his decision. Grounds 2, 3 and 4 which have to do with the question of supervision in my view are not established. Neither is ground 5 which encompasses the same questions. Finally there is ground 6, which is a general ground asserting that there was a miscarriage of justice in all the circumstances.
In my opinion for the reasons I have given, the appeal must be dismissed.