Auspine Limited v Kent

[2009] TASSC 38

[2009] TASSC 38

CITATION:              Auspine Limited v Kent [2009] TASSC 38

PARTIES:  AUSPINE LIMITED (ACN 004 289 730)
  t/as AUSPINE TASMANIA
  v
  KENT, Robert Bruce

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  834/2007
DELIVERED ON:  29 May 2009
DELIVERED AT:  Hobart
HEARING DATE:  16 February 2009
JUDGMENT OF:  Tennent J

CATCHWORDS:

Magistrates – Appeals and review – Tasmania – Motion to review – The hearing – Generally – No substantial miscarriage of justice.

Justices Act1959 (Tas), s110(2)(ab).
Workplace Health and Safety Act 1995 (Tas), s9(1)(a)(iii).
Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
             Applicant:  S P Estcourt QC
             Respondent:  S Bender
Solicitors:
             Applicant:  C N Dockray
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2009] TASSC 38
Number of paragraphs:  32

Serial No 38/2009
File No 834/2007

AUSPINE LIMITED (ACN 004 289 730)
t/as AUSPINE TASMANIA v ROBERT BRUCE KENT

REASONS FOR JUDGMENT  TENNENT J

29 May 2009

1. On 13 November 2007, a magistrate found proved against the applicant a complaint laid against it pursuant to the Workplace Health and Safety Act 1995 ("the Act"), s9(1)(a)(iii). He recorded a conviction and fined the applicant $35,000.

1. The applicant has sought a review of the learned magistrate's decision.  The grounds of review are in the following terms:

"1The conviction is unsafe and unsatisfactory.

2The learned Magistrate failed to resolve the actual issue arising on the complaint before him in accordance with the law.

3The learned Magistrate failed to apply s9(1)(a)(iii) of the Workplace Health and Safety Act 1995, properly construed, to the facts in evidence before him.

4The learned Magistrate erred in construing s9(1)(a)(iii) of the Workplace Health and Safety Act 1995 as involving an absolute duty to provide a risk free work environment.

5Alternatively the learned Magistrate failed to give adequate reasons for a finding of guilt based on an application of s9(1)(a)(iii) of the Workplace Health and Safety Act 1995, properly construed, to the facts in evidence before him."

1. The charge laid against the applicant was as follows:

"Charge:-        Failing to provide plant in safe condition

Breach of: Section 9(1)(a)(iii) of the Workplace Health & Safety Act 1995

Particulars

1At all material times Auspine Limited trading as Auspine Tasmania ('the Defendant') was the employer within the meaning of the Workplace Health & Safety Act 1995 of Alvyn Kenneth Singline ('Mr Singline') at a workplace at Tonganah.

2On or about the 25^th of March 2006 at the said workplace Mr Singline suffered injuries namely the partial amputation of the first three fingers of his right hand when they came into contact with a moving rotary feeder within a mixing bin.

3At the time and place aforesaid the Defendant failed in respect of Mr Singline to provide so far as reasonably practicable plant in a safe condition, further particulars of such failure being set out below,

contrary to Section 9(1)(a)(iii) of the Workplace Health & Safety Act 1995

Further particulars

The Defendant failed to –

(a)ensure that the inspection port of the mixing bin could not be opened while the rotary feeder within was operating;

(b)guard, adequately or at all, the rotary feeder;

(c)provide a fail-safe capacity to the door of the inspection port, in particular one which would:

(i)     prevent the door being opened while the machinery was operating; and/or

(ii)    shut down the moving machinery immediately the door was opened."

1. The decision of the learned magistrate following the hearing of the evidence was brief.  He said:

"The decision from a New South Wales Industrial Relations Commission in Mulder, NSWIRComm 50, delivered on the 15^th May 2001 at paragraph 45 succinctly states that the law which I consider appropriate to this case, and that is relating to the employer's duty.

'The duty to provide a risk free work environment is a duty owed not only to the careful and observant employee but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that is reasonably foreseeable.'

Well as to whether that which occurred, namely, as to whether the opening of the inspection port while the machinery was in operation was something that could be reasonably foreseen I see as having been established.  I simply don't need to go any further, with respect, I find the complaint proved."

1. The case, to which the learned magistrate referred in his reasons, was Workcover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd [2001] NSWIRComm 50, a case produced to him by the prosecutor, and relied upon as setting out the appropriate test for the learned magistrate to apply.

1. There can be little doubt the learned magistrate adopted words from par45 in that decision as setting out the applicable test, made a finding the action of the worker in this case could reasonably be foreseen, and found the complaint proved.  It is implicit in his finding that the applicant had failed to provide a risk-free work environment.

1. The difficulty with his Honour's approach is that Mulder's case was dealing with legislation which imposed a different duty from that imposed by the Act, s9(1)(a)(iii). The Occupational Health and Safety Act 1983 (NSW), s18(2), the provision under consideration in Mulder's case, provided:

"(2)     A person who manufactures or supplies any plant for use at work or any substance for use at work shall:

(a)ensure that the plant or substance is safe and without risks to health when properly used;"

The important words are "shall … ensure that the plant is safe and without risks".

1. The Act, s9(1)(a)(iii), on the other hand, provides as follows:

"(1)   An employer must, in respect of each employee employed by the employer, ensure so far as is reasonably practicable that the employee is, while at work, safe from injury and risks to health and, in particular, must –

(a)               provide and maintain so far as is reasonably practicable –

(i)        …

(ii)       …

(iii)      plant and substances in a safe condition; … "

It imposes a duty on an employer to "ensure so far as is reasonably practicable" an employee is safe from injury and risks, and requires that an employer "must provide and maintain so far as is reasonably practicable" equipment in a safe condition.  Whereas the duty in Mulder's case might be said to be an absolute duty, that provided for in the Act is one which is qualified.

1. In his reasons for decision, his Honour made no reference to s9.  However, in an exchange between the learned magistrate and counsel prior to the decision, it is apparent his Honour had some regard to its terms.  He said:

"Well there's, the import of the evidence of the system having been altered and those mechanical changes having been made pretty quickly would prima facie demonstrate that it was reasonably practicable at the time to have made those changes I would have thought unless you wish to argue … ".

1. Counsel for the applicant before the learned magistrate did not disagree that it could be said to have been reasonably practicable for the applicant to make the mechanical change it did. However, he argued that the system as it was at the time of the accident, when combined with the training and instructions provided in its use, must lead to a finding that in all the circumstances the applicant had complied with s9(1)(a)(iii). His Honour, however, took the view, relying on the passage in Mulder, that the work environment had to be risk-free even for a "hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee" in respect of conduct which was reasonably foreseeable.  It is implicit in his reasons that he found the capacity of a worker to do what the worker in this case did was reasonably foreseeable, and could have been prevented.  His Honour did not look at the entire circumstances of the case, and consider whether the employer had, as far as was reasonably practicable, ensured the equipment was in a safe condition for the worker to use.

1. It is clear his Honour did not correctly apply the law to the facts he heard.  On that basis this review should succeed.

1. However, obviously anticipating that outcome, counsel for the respondent has urged that I consider the application of the Justices Act 1959, s110(2)(ab). That provides that a court hearing a review may "in a case where the court considers that no substantial miscarriage of justice has occurred even though the cause or matter raised by the motion might be decided in favour of the applicant, dismiss the motion". Counsel submitted that, even had the learned magistrate applied the correct test, he would have found the complaint proved. Counsel for the applicant, on the other hand, has urged that I quash the order being reviewed, and order that the matter be retried by a magistrate.

1. Section 110(2) begins with the words "On the hearing of a motion to review, the court shall, upon consideration of the evidence and materials adduced and brought before the justices and such further evidence (if any) as it thinks fit, review the order…..".  No application was made for any further evidence to be considered.

In what circumstances should a Court act by reference to s110(2)(ab)?

1. The principles applicable to the Criminal Code, s402(2) are equally applicable to the Justices Act, s110(2)(ab). See Schreuder v Australian Securities Commission (1996) 6 Tas R 223 at 236. Underwood J (as he then was) said at 236:

   "The answer to the question whether a substantial miscarriage of justice has occurred is to be answered in accordance with the following legal direction taken from the judgment of Brennan J (as he then was), Dawson and Toohey JJ in Wilde v R (1987 - 1988) [1988] HCA 6; 164 CLR 365 at 371 - 372:

   'Those authorities establish that where there has been a departure from the requirements of a properly conducted trial, it cannot be said that there has been no substantial miscarriage of justice if the applicant has thereby lost "a chance which was fairly open to him of being acquitted" to use the phrase of Fullagar J in Mraz v The Queen[1955] HCA 59; (1955) 93 CLR 493 at 514 or "a real chance of acquittal" to use the phrase of Barwick CJ in Reg v Storey[1978] HCA 39; (1978) 140 CLR 364 at 376. Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside: see Driscoll v The Queen[1977] HCA 43; (1977) 137 CLR 517 at 524; Reg v Storey (supra); Gallagher v The Queen[1986] HCA 26; (1986) 160 CLR 392 at 412-413.'"

2. The proviso (s402(2)) was considered in W v R [2006] TASSC 52 where, at pars63 - 66, Slicer J considered the decision of the High Court in Weiss v R (2005) 80 ALJR 444. His Honour said:

"63       While their Honours accepted that use of particular terms might be useful in assessing circumstances of specific cases, they considered, at par39, that:

'Three fundamental propositions must not be obscured. First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt.'

64              Their Honours concluded, at par41:

'That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517 at 524-525 per Barwick CJ; Storey [1978] HCA 39; (1978) 140 CLR 364 at 376 per Barwick CJ; Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454; M v The Queen [1994] HCA 63; (1994) 181 CLR 487; Festa [2001] HCA 72; (2001) 208 CLR 593 at 631-633 [121]- [123] per McHugh J and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 125-126 [23] per Gleeson CJ, Gummow and Kirby JJ, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself.'

65              The court recognised that it was not useful 'to attempt to lay down absolute rules or singular tests that are to be applied by an appellate court' because of 'the very wide diversity of circumstances in which the proviso falls for consideration', but emphasised that the task is objective. In undertaking that task, an appellate court is required to consider:

(1)          the whole of the trial record, including the verdict itself;

(2)the accusatorial nature of criminal trials and the requirement of proof beyond reasonable doubt;

(3)the permissive nature of the wording of the proviso leading to a negative proposition, namely:

'It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty.'

(4)in certain cases, such as a significant denial of procedural fairness at trial, it is proper to allow an appeal "even though the appellate court was persuaded to the requisite degree of the appellant's guilt."

66              The court left for future consideration:

' ... the related question whether some errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of the common form criminal appeal provision with its proviso.'"

1. Counsel for the applicant submitted that the learned magistrate in this case misconstrued the section of the legislation with which he was dealing.  There could, he said, be no more fundamental error.  The learned magistrate did not apply his mind to the correct test.  Had he done so, he would have been aware that there was a shortfall in the evidence because there was no evidence about the expense of rectification.  Ultimately, counsel argued this was simply not a case to which the proviso should be applied.

Is the Court able to determine that no substantial miscarriage of justice has occurred?

1. The evidence before the learned magistrate disclosed that the worker in this case was attending to a mixing bin at a sawmill operated by the applicant.  A rotary valve operated by a motor sat beneath the bin. It controlled the volume of fuel to a furnace. There was an inspection port on the outside of the area where the rotary valve was.  The port consisted of a hinged door with a perspex insert through which, were the insert not obscured by sawdust, a worker could see if there was any obstruction to the rotary valve.  The inspection port door could be opened by means of a flick release catch on the right-hand side of the inspection port.  On the ground immediately in front of, and under, the inspection port, where a person looking through the port would be standing, sawdust routinely accumulated.  The motor operating the rotary valve was positioned on the other side of the bin from where the inspection port was.  There was an isolation switch above the motor which could be used to stop the valve rotating.  That isolation switch was not within the reach of a person standing in front of the inspection port.  For such a person to access the isolation switch, that person would need to walk around the machinery to reach it.

1. The only evidence of what actually occurred came from the worker.  He had been employed with the applicant for about 18 years.  His usual role was as a timber grader, but he also worked irregularly as a relief kiln operator.  On the night of 25 March 2006, he began a shift at 10pm and had his accident about 5am the following morning.  He said that he suspected there was a blockage in the rotary valve. He opened the inspection door and sawdust came out, getting in his clothes and his eyes.  He went to shut the door, his vision was limited and he slipped forward with his hand extended to shut the door.  His hand went into the rotary feed.  As to the state of the floor in front of the inspection port, he said that, as instructed, he had been washing the floor down every hour or so to prevent sparks from the machinery igniting any sawdust.

1. He was unaware of any lock out procedure for the particular piece of equipment.  He was aware that there was an isolation switch at the rear of the mixing bin which he said was a number of metres away from the inspection port.  He said that the latch on the inspection port door was easy to open.

1. The worker agreed that, at the end of February 2006, he had attended a training course in relation to a "Lock Out/Tag Out & Machine Guarding" procedure. He also agreed that, prior to the accident in which he was injured, he knew of general lock-out procedures at the plant, and that, if a person was working with moving machinery and needed to check something, they should first isolate it and lock it out.  He was aware that the document relating to lock-out procedures at the plant was kept in a folder in the lunch room.  The worker acknowledged that he had been shown the procedure for shutting down the rotary valve.  He accepted that the procedure was to turn off all of the furnace feed systems, including the isolation switch, and then open the inspection port.  He also accepted that, when he opened the inspection port on the night he was injured without taking those earlier steps, it was contrary to what he had been told to do.  It was suggested to the worker by counsel for the applicant that he had not in fact slipped as he asserted, but that he had put his hand into the machine to check for a blockage.  The worker denied this.

1. At the time of the incident, the applicant had in place what was described as a "Lock Out and Tag Out Procedure".  There was a document which consisted of a number of pages which included the diagrams which described this procedure.  The purpose of the procedure was stated to be:

"Where employees and contractors are required to work on equipment involving various energy sources, they shall be made aware of and comply with measures established to safely isolate these energy sources.

To ensure the safety of all employees while carrying out machinery or process repairs, maintenance work, cleaning or setting up equipment and to prevent the operation of any machinery or process where damage may occur due to the equipment being in an unserviceable condition."

This document was tendered to the learned magistrate. A second document was also tendered which was called "Lock Out/Tag Out & Machine Guarding" training session. It provided that:

"Where employees and contractors are required to work on equipment involving energy sources, they shall be made aware of and comply with the measures established to safely isolate these energy sources."

1. At the time of this accident, the Workplace Health and Safety Regulations 1998, reg84, provided:

"84   Lock-off Requirements

(1)        An accountable person must ensure that where there is a possibility of injury being caused, plant is fitted with an effective system of isolation in order to protect persons in the proximity of that plant from injury.

Penalty:

Level 3.

(2)        Where appropriate, a system for the isolation of plant is to include mechanical locks and whole current isolators.

(3)        An accountable person must ensure that, if any plant is designed to be operated automatically or from more than one location, that plant is fitted with stop and lock-off type controls that effectively isolate the power source.

Penalty:

Level 3

(4)An accountable person must ensure, in the case of electrically powered plant, isolation is effected by the interruption of the power circuit and not the control circuit.

Penalty:

Level 3."

1. Also before the learned magistrate, was an Australian Standards document number 4024.1. At 19 of that document, under the heading "Identification of Hazards", it was identified that bodily contact with certain features in machinery might lead to entanglement. It identified as a potential hazard the catching of part of a person or their clothing between two parts of a machine such as:

"(iii)Between rotating and fixed parts (see Figure 4.5).  Examples of such rotating and fixed parts are spoked handwheels or flywheels and the machinery bed, screw or worm conveyors and their casings, revolving mixer and mincing mechanisms in casings having unprotected openings …".

A Workplace Standards Tasmania inspector, a Mr Hurley, gave evidence and identified the machinery depicted in diagram 4.5 as being almost identical to that in which the worker in this case was injured. He told the learned magistrate that, in his view, the applicant was not at the time of the incident the subject of these proceedings, compliant with reg84. He also said, in relation to compliance with the Australian Standards document, that:

"In my opinion, the guarding of the rotary valve, the entry into the rotary valve wasn't compliant with 4024.1 and also there were other guarding issues in the area that were non-compliant and as well."

1. The inspector had, as part of his investigation into the incident, inspected machinery and interviewed staff of the applicant.  He agreed that there was provision for a lock or tag to be put on the isolation switch above the motor operating the rotary valve.  There was no evidence however that one had actually been there at the time of the worker's accident.  The inspector gave the applicant a notice which required the applicant to stop using the particular machinery until work had been done on it. The applicant carried out some modifications. It installed a magnetic switch on the inspection port door.  The effect of that magnetic switch was that, as soon as the door was opened, the system automatically shut down.  The inspector reviewed that modification and was satisfied that it was a proper one.

1. An experienced worker with the applicant gave evidence to the effect that particular circumstances affecting the mixing bin at the time of the incident could have led the worker to suspect a blockage in the rotary valve. He then described the procedure which should be undertaken by a worker if such a blockage were suspected. He said:

"If a blockage in the rotary valve is suspected you, due to the blockage it's generally most of the time the furnace has shut down itself anyway, but if not you can isolate the rotary valve and when the primary air fan has closed down to, it stops dust blowing back in your face from opening it, you can open the inspection and actually physically visually inspect the rotary valve and to determine if there is blockage of whether it be rock or block of wood or something like that."

He went on to say, when asked about whether it was possible to see through the perspex insert in the door all the time:

"Due to fine particles of dust it does put a film over it. Quite often using the expedient of simply just giving it a tap with your fist it will and you can see if fuel is feeding from both sides of the bin for example."

1. This same worker agreed under cross-examination that, had the isolation switch at the back of the mixing bin been activated, it would be possible for somebody walking past it to simply deactivate  it. However, that could not happen if there was a lock-out tag in place.  He had opened the particular inspection port many times, but never while the machinery was operating.  He was asked questions about the training of the worker who had been injured. He described him as a relief kiln operator who was competent. As to the worker's training, he said:

"Well there was, Alvyn's initial training with the train the trainer, and after that there was training where other operators took a week with Alvyn or Alvyn went with them for whether it be a week or a few days and so forth to give him a rounded idea of, put it this way, a bit like driving a car, everybody basically does it the same, but you are a human being in between time, and Alvyn just got the broad gist of how all the operators worked."

He could not think of any specific time at which he had explained to the worker the procedure for isolating the rotary valve if there was a perceived blockage, but said that he was quite sure that, at some stage during his training, the worker would have been given a practical example of it.  This employee confirmed that the lock-out procedure document was kept in a folder in the employee lunch room.

1. The learned magistrate clearly accepted the worker's evidence that his hand went into the open inspection port accidentally, and that his injury did not occur as a result of any deliberate attempt to remove an obstruction inside the inspection port.  There was no dispute:

-there was a lock out/tag out procedure in place in respect of machinery at the applicant's mill,

-the worker had had training in that procedure and had access to the documents which described it,

-the worker knew he should have, instead of opening the inspection port as he did, gone to the control room, turned off the systems there, activated the isolation switch, and only then opened the inspection port,

-the worker acted contrary to that knowledge, and

-the applicant had, shortly after the incident, installed a magnetic switch on the inspection port door, the effect of which was not to stop the door being opened but to close down the machinery were the door opened.

1. There was no evidence that the worker had been trained in a specific lock out/tag out procedure for the particular piece of equipment he was using.  The isolation switch, on the evidence, was anywhere between five and 12 metres from the inspection port.  It can be inferred from the evidence that the control room was even further away.  The worker, as a relief kiln operator, did not use this equipment as part of his daily employment. At the time the accident occurred, the worker was near the end of a night shift and he was tired.

1. There was no evidence as to the cost of the remedial work undertaken by the applicant after the incident.  From the exchange which occurred between the learned magistrate and counsel for the applicant during the course of closing submissions, it would seem clear that the applicant was not seeking to rely on the fact that the cost of that remedial work might mean it was not a reasonably practicable measure to take.  The applicant did not lead any evidence at the hearing. It could have, but made the choice not to. It can be inferred that the cost of that remedial work was not a factor it considered relevant in determining the question of whether it had ensured, as far as was reasonably practicable, that the machinery was in a safe condition.

1. The question which should have exercised the mind of the learned magistrate was, had the applicant ensured, so far as was reasonably practicable, that the worker was safe from injury and that the equipment he was using was in a safe condition as a consequence of:

-its implementation of lock out/tag out procedures at its mill, and

-the training it had in place for employees generally and, in particular, conducted with the worker.

1. While it is conceded that the learned magistrate did not apply the correct test in determining this matter, and in particular, did not ask himself the correct question, I am of the view that, had he done so, the outcome of the proceedings would not have been any different. It was clearly open to him on the evidence before him to be satisfied beyond reasonable doubt that the system in place at the time of the accident was inadequate to prevent a worker, trained in lock-out procedures or otherwise, from taking a shortcut by ignoring those procedures.  The opening of the inspection port while the machinery was operating was easy to do, was a potentially inviting option for a worker who was tired (because it avoided the necessity to not only go to the back of the machine to access the isolation switch, but also to a control room) and inherently produced an unsafe situation because it presented a worker potentially with a face full of sawdust and, as a consequence, obscured vision.  The step taken by the applicant following the incident removed any possibility of an injury to a worker as suffered in March 2006 when the inspection port was opened.  It did so because, if the inspection port were again opened without reference to the safety procedures the applicant had in place, the moving parts of the machinery would have been closed down by the magnetic switch.  There was no issue raised by the applicant before the learned magistrate that cost, or any other particular difficulty, rendered the putting in of the magnetic switch, a process which was not reasonably practicable.

1. In all the circumstances, while I am satisfied that the error made by the learned magistrate should on the face of it result in this review succeeding, I am also satisfied that there has been no substantial miscarriage of justice as a consequence of the error of the learned magistrate.  The review is therefore dismissed.