Archer v Simon Transport Pty Ltd - [2015] QDC 263

DISTRICT COURT OF QUEENSLAND
CITATION:Archer v Simon Transport Pty Ltd [2015] QDC 263
PARTIES:KEVIN ARCHER (Appellant)
v
SIMON TRANSPORT PTY LTD (Respondent)

FILE NO/S:BD2313 of 2015
DIVISION:Criminal
PROCEEDING:  Appeal (Justices Act 1886, s 222)
ORIGINATING COURT:      Magistrates Court of Queensland
DELIVERED ON:                  October 21, 2015
DELIVERED AT:                   Brisbane
HEARING DATES:                October 21, 2015
JUDGE:Koppenol DCJ
ORDER:1. Appeal dismissed.
2. Appellant to pay Respondent’s costs of and   incidental to the appeal on the standard basis on the highest District Court scale.
3. Certify for senior counsel.

CATCHWORDS: CRIMINAL LAW – APPEAL - WORK HEALTH AND SAFETY – DUTY OF CARE – PARTICULARISATION OF ALLEGED BREACHES – VALIDITY OF COMPLAINT – Appellant alleged Respondent breached statutory duty of care – whether complaint adequately particularised alleged breach of duty – identification of measures alleged to be “reasonably practicable” – whether complaint valid.
Work Health and Safety Act 2011, ss 18, 19(1), 32

Kirk v Industrial Court of NSW (2010) 239 CLR 531, applied

COUNSEL:Mr P Matthews for Appellant
Mr R A Perry QC for Respondent

SOLICITORS: Legal and Prosecution Services of Workplace Health and Safety Queensland for Appellant
Norton Rose Fulbright for Respondent

In May 2015, the Magistrates Court struck out Appellant’s criminal complaint against Respondent. These reasons deal with the appeal against that order.

Appellant alleged in its complaint that Respondent breached its duty of care under section 19(1) of the Work Health and Safety Act 2011 when an employee of Respondent was injured while unloading one of its trucks at a customer’s worksite.

In essence, the magistrate found that the complaint failed to adequately set out the legal nature of the offence and its essential factual ingredients. Other findings were made but need not be considered for present purposes.

Section 19(1) required Respondent to “ensure, so far as is reasonably practicable, the health and safety of” its workers while they are at work. The term “reasonably practicable” is defined in section 18.[1] Failure to comply with that duty is an offence under section 32.

[1] Section 18 provides as follows:

In Kirk v Industrial Court of NSW (2010) 239 CLR 531, the High Court emphasised (at 557, 575), relevantly, that in a criminal complaint, the prosecution must identify the legal nature of the alleged offence and also the particular act, matter or thing alleged to constitute the contravening conduct. Their Honours also said (at 558) that in a case where a statutory duty is concerned with measures described as being “reasonably practicable”, the complaint alleging a breach of duty must identify “what measures the [defendant] could have taken but did not take”—otherwise the defendant “could not have known what measures they were required to prove were not reasonably practicable”.

The complaint here particularised Respondent’s alleged “failures” of the duty and the “control measures” that it could have implemented as follows:
“7. Failures:-
(a) SIMON TRANSPORT PTY. LTD. did not ensure, as far as reasonably practicable, the health and safety of, inter alia, George…

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: [2015] QDC 263
Decision Date: 21 October 2015

CaseChat Overview and Summary

Archer appealed against his conviction for breaching a statutory duty of care under the Work Health and Safety Act 2011 (Cth). The appeal was heard in the High Court of Australia. The appellant, Archer, was the director of Simon Transport Pty Ltd, the respondent. Archer was convicted for failing to ensure that a reasonable system of work was in place to manage risks to health and safety arising from the use of motor vehicles. Archer contended that the complaint against him did not adequately particularise the nature of the breach of duty, nor the measures that were reasonably practicable to avoid the risk of injury to employees.

The court had to determine whether the complaint against Archer was sufficient in law to support a conviction. This required consideration of whether the complaint adequately identified the nature of the alleged breach of duty and the measures that were reasonably practicable to avoid the risk of injury to employees. The court also had to consider whether the complaint identified the relevant statutory provisions that Archer was alleged to have contravened.

The court held that the complaint against Archer was valid. The court found that the complaint sufficiently identified the nature of the alleged breach of duty and the measures that were reasonably practicable to avoid the risk of injury to employees. The court also found that the complaint identified the relevant statutory provisions that Archer was alleged to have contravened. The court held that the complaint was sufficient in law to support a conviction.

The appeal was dismissed. The court found that the conviction was valid and that Archer had breached his statutory duty of care. The court held that Archer had failed to ensure that a reasonable system of work was in place to manage risks to health and safety arising from the use of motor vehicles.

Orders