Baiada Poultry Pty Ltd v The Queen
[2011] VSCA 23
•18 February 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| BAIADA POULTRY PTY LTD | S APCR 2009 0653 |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | NETTLE, NEAVE JJA and KYROU AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 1 February 2011 |
| DATE OF JUDGMENT | 18 February 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 23 |
| JUDGMENT APPEALED FROM | R v Baiada Poultry Pty Ltd (Unreported, County Court of Victoria, Judge Campbell, 29 May 2009) |
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CRIMINAL LAW – Conviction – Occupational Health and Safety – Failure to provide safe systems of work for employees – Independent contractors – Control – Basis of control – Whether applicant company had ‘control’ to direct independent contractor – Practicability – Whether judge failed to give jury sufficient directions regarding control had by applicant – Whether applicant entitled to rely on expertise of contractors – Appeal disallowed – Occupational Health and Safety Act 2004, ss 21(1) and 23(1)
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Appearances: | Counsel | Solicitors |
| For the Applicant | Mr P G Priest QC with Mr M J Croucher | Norton Rose |
| For the Respondent | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA:
On 29 May 2009, the applicant (‘Baiada’) was convicted in the County Court at Melbourne of one count of breaching s 21(1) of the Occupational Health and Safety Act 2004 (‘the Act’) by failing to provide plant and systems of work for employees that were safe and without risks to health.[1] Following a plea in mitigation of penalty, it was sentenced to a fine of $100,000. It now seeks leave to appeal against conviction on grounds that the verdict was unsafe and unsatisfactory and that the judge erred in his directions to the jury.
[1]Baiada was acquitted by direction of a second count of failing to ensure that persons other than employees were not exposed to risks to health and safety, contrary to s 23 of the Act.
The facts
According to the evidence at trial, Baiada carried on a business of processing broiler chickens at a plant in Laverton North. It had purchased that business from Eatmore Poultry (‘Eatmore’) in or about June 2004 and, as part of the acquisition, Baiada effectively took over Eatmore’s contractual arrangements with a number of independent contract growers. Andrea and John Houben were Baiada contract growers. They conducted a poultry growing farm in Bungower Road, Moorooduc which they had purchased from an Eatmore grower. When the Houbens purchased the farm, they took over the vendor’s grower contract with Eatmore and thereafter continued to raise chickens for Eatmore and later Baiada.
Under the contractual arrangements thus constituted between Baiada and the Houbens, Baiada supplied the Houbens with chickens, chicken feed and technical assistance, and in turn the Houbens raised each lot of chickens for Baiada until they were about 32 days old. It was then Baiada’s responsibility to round up the chickens and transport them to its plant in Laverton North for processing
Rather than use its own employees for the task, Baiada engaged independent contractors known as ‘chicken catchers’ to round up the chickens and pack them into steel containers for carriage to the plant, and independent transport contractors to transport the containers to the plant. In this case, it engaged DMP Poultech Pty Ltd (‘DMP’) to do the chicken catching and Azzopardi Haulage Pty Ltd (‘Azzopardi Haulage’) to transport the crates of chickens by road from the farm to the plant. Azzopardi Haulage was a privately owned family company of which the deceased, Mario Azzopardi, was the director and driver.
Under the applicant’s contractual arrangements with Azzopardi Haulage, Azzopardi Haulage was bound to provide a prime mover and driver and Baiada to provide trailers loaded with empty chicken crates. Azzopardi Haulage was then required to haul each trailer loaded with empty crates from Baiada’s plant to Houben farm. Once there, it was DMP’s obligation to provide a fork-lift truck and driver to unload the crates from the semi-trailer, move the crates with the fork-lift into a shed, fill the crates with chickens and then use the fork-lift to move the crates back and reload them onto the trailer. Then it was Azzopardi Haulage’s job to haul the filled trailer of crates of chickens back to Baiada’s plant for unloading by Baiada employees.
Baiada’s practice was to notify the Houbens when a collection was to take place and to send a chicken catching crew and semi-trailer to the farm to carry out the work. Consistently with that practice, Baiada made arrangements for a collection from the farm to take place on the evening of Sunday 4 December 2005. A team of chicken catchers from DMP went to Houlben Farm that evening to effect the collection. The team comprised Aaron Slocombe, Travis Lowe, Jacob Devent, Scott Wilmot and Michael Anderson. Aaron Slocombe was the supervisor of the crew and the leading fork-lift driver. They arrived at the farm at about 10.00pm.
Later in the evening, Mario Azzopardi drove the Azzopardi Haulage prime mover and a Baiada trailer of empty crate modules to the farm. Using the fork-lift, Aaron Slocombe moved the empty modules off the trailer and took them to the shed to be filled with chickens. He then returned with the full modules and placed them on the trailer. At some point in the evening, the chicken catchers ran out of chickens, leaving a few empty modules to be returned to the trailer.
Jacob Devent had been learning how to drive the fork-lift and asked if he could use it in order to place the empty modules on the trailer. Although Devent did not have a fork-lift licence, he was allowed to drive it under Aaron Slocombe’s supervision, and he was permitted so to drive it on this occasion.
Mario Azzopardi was at that point strapping up the load on the side of the trailer from which Devent was loading. After Devent had loaded a module onto the trailer, Mario Azzopardi asked him to move around some of the empty and full modules on the trailer in order to even out the load. Devent said that he attempted to comply with the request but that, when he got the fork-lift tines into one of the full modules, he found that the module was stuck. Mario Azzopardi gave him a hand to get it unstuck and, at that point, Aaron Slocombe walked off to make a telephone call and check some paperwork.
Devent said that he next asked Mario Azzopardi to move out of the way, and he backed the fork-lift until the module was halfway out, at which point he stopped to make sure that all was well. He said that Mario Azzopardi then told to him that he was right to keep going, and so he pulled out a little further. But, as soon as he did, the module fell suddenly onto Mario Azzopardi inflicting fatal injuries.
Mario Azzopardi died at the scene. Ambulance, police and Worksafe officials were contacted and attended.
The Crown case at trial
So far as is relevant, s 21 of the Act provides that:
21. Duties of employers to employees
(1)An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.
…
(2)Without limiting sub-section (1), an employer contravenes that sub-section if the employer fails to do any of the following –
(a)provide or maintain plant or systems of work that are, so far as is reasonably practicable, safe and without risks to health;
…
(3) For the purposes of sub-sections (1) and (2) –
(a)a reference to an employee includes a reference to an independent contractor engaged by an employer and any employees of the independent contractor; and
(b)the duties of an employer under those sub-sections extend to an independent contractor engaged by the employer, and any employees of the independent contractor, in relation to matters over which the employer has control or would have control if not for any agreement purporting to limit or remove that control.
The Crown case against Baiada was that, although Baiada engaged DMP as an independent contractor to carry out the work of catching the chickens and loading the trailer, and Azzopardi Haulage as an independent contractor to act as carrier, Baiada retained ‘control’ over the loading activities and thus, under s 21(3)(b), owed duties as an ‘employer’ to the employees of DMP and Azzopardi Haulage in relation to those activities to provide or maintain plant or systems of work that were, so far as was reasonably practicable, safe and without risks to health.
The Crown called evidence to the effect that there was an established code of practice relating to the use of power mobile plants, which included fork-lifts, and that the relevant risk control measures to ensure pedestrians were not hurt were set out in Appendix 6 to that document. According to that evidence, it would have been reasonably practicable for Baiada to have required its contractors to take those steps, which included the establishment of a pedestrian exclusion zone marked by lines, witches hats or temporary/permanent bollards and a truck driver safety zone where truck drivers can stand and watch the loading. As it was, however, there were no safety measures of that kind in operation on the night in question.
After Mr Azzopardi’s death, Noel Purdon of DMP gave the chicken catching crews safety instructions that directed them to put cones out and have a flashing light and a sign out while loading the trucks with the fork-lifts. The instruction required the cones to be placed around the loading area and the signs to be placed on either side of the truck. Flashing lights were also placed either side of the truck. Mr Purdon also directed them to turn off the fork-lift if anyone came into the loading area.
Ground 1 – Unsafe and unsatisfactory
Under Ground 1 of appeal, counsel for Baiada contended that the verdict was unsafe and unsatisfactory because there was no evidence that Baiada had ‘control’ over the ‘matters’ alleged within the meaning of section 21(3)(b) of the Act.
Counsel submitted that ‘control’ for the purposes of the section was to be conceived of as actual control in the sense contemplated by the Western Australian Court of Appeal in Reilly v Devcon Australia Pty Ltd,[2] as follows:
…the control must be actual control (encompassing a right of actual control, whether exercised or not) over the particular matter affecting safety, … rather than general responsibility for, or control over, the workplace. That reinforces the notion that the legislature did not intend to impose upon a principal who has engaged a specialist contractor (who is not ordinarily susceptible to direction as to how to perform its work: see, eg, Humberstone v Northern Timber Mills (Dixon J)[3]) a general obligation to supervise the manner in which the contractor (having an expertise that the principal lacks) goes about the performance of the work entrusted to it.
[2](2008) 36 WAR 492 [34]–[35].
[3](1949) 79 CLR 389, 404.
Counsel for the Crown resisted that contention. He argued that the correct test of ‘control’ was that which was adumbrated by Stuart-Smith LJ in R v Associated Octel Co Ltd,[4] and subsequently followed by this court in R v ACR Roofing Pty Ltd,[5] as follows:
...the question of control may be very relevant to what is reasonably practicable. In most cases the employer/principal has no control over how a competent or expert contractor does the work. It is one of the reasons why he employs such a person – that he has the skill and expertise, including knowledge of appropriate safety precautions which he himself may not have. He may be entitled to rely on the contractor to see that the work is carried out safely, both so far as the contractor's workmen are concerned and others, including his own employees or members of the public; and he cannot be expected to supervise them to see that they are applying the necessary safety precautions. It may not be reasonably practicable for him to do other than rely on the independent contractor.
But there are cases where it is reasonably practicable for the employer to give instructions how the work is to be done and what safety measures are to be taken. Examples of such cases are the Swan Hunter case ...
[4][1994] 4 All ER 1051, 1063.
[5](2004) 11 VR 187, 213 [68].
For present purposes, I doubt there is much difference between the two formulations. Both proceed from the premise that an employer is not liable for failing to exercise control unless the employer has the right to control. Both recognize that, in the scheme of things, an employer does not ordinarily have control over the way in which a competent or expert contractor does the work which the contractor is engaged to perform. Equally, both allow that there are cases where an independent contractor is susceptible to direction in some respects. Additionally, Associated Octel is clear, and Reilly v Devcon does not gainsay, that a contractor may be susceptible to direction regarding the safety measures to be observed while work is performed. Whether it is reasonably practicable for an employer to exercise such a power of direction is then a question of fact and degree.
Basis of control
At trial, the prosecutor put the Crown case to the jury, among other ways, on the basis that the applicant had contractual power to direct DMP regarding the safety measures to be observed while unloading and loading trailers, and had the skill and capacity which made it reasonably practicable for it to exercise that power. The Crown relied on a document, entitled ‘Heads of Agreement – Live Bird Pick Up Agreement’ (‘the Heads of Agreement’), which was executed under seal by DMP and Baiada and expressed to operate for the period 1 July 2004 to 30 June 2007. So far as relevant, the Heads of Agreement provided that:
1. Obligations of DMP
(a)DMP will, in accordance with proper standards of live bird pickup management and/or good poultry husbandry practice, pick up live chickens at the end of their growing cycle (i.e. at slaughter age, also known as live birds) on the days and in the quantities as specified by Baiada at any time and from time to time.
(b)specifically, DMP will provide the labour to catch the live birds and place them in the modules, the forklift to load the modules onto a trailer, a forklift driver and a vehicle to transport the forklift.
(c)this agreement applies to the processing plant at Pipe Road Laverton North or as directed by Baiada.
2. Obligations of Baiada
to supply the modules, trailers and transport of the modules to and from the farm and the processing plant.
3. Ownership of items
(a)by DMP: the forklift and the vehicle delivering and picking up the forklift.
(b)by Baiada: the live birds, the modules, the trailers (and DMP acknowledges and agrees that it has no lien over and no interest in these items).
…
10. Baiada Policies and Protocols
(a)no employee of DMP is to have any contact with pigs or avian species at home or at work or co-habitating [sic] with same.
(b)DMP must at all times follow and adhere to all procedures, rules and regulations of Baiada eg. those applying to Biosecurity, quarantine, pick ups at other processing plants, OH&S, minimum operating standards.
In the prosecutor’s submission to the jury, clause 10 of the Heads of Agreement gave Baiada express contractual power to direct DMP to follow reasonable OH&S safety measures while loading and unloading trailers at Houben Farm. The fact that it would have been reasonably practicable for Baiada to direct DMP to observe proper safety measures was demonstrated by the measures which were implemented by DMP after the death of Mario Azzopardi.
At trial, counsel for Baiada argued to the contrary, that the Heads of Agreement was confined to operations at the Laverton North plant or at least did not apply to Houbens Farm. As he put the submission to the jury, it was that:
Now the big point for the prosecution seems to rest in 1(c), and, ‘Oh’, says [the prosecutor], ‘this agreement applies to the processing plant at Pipe Road, Laverton North or as directed by Baiada, presumably other plants as directed by Baiada. [The prosecutor] says, ‘Oh, the chicken catchers never ever went to Laverton North. Therefore, this must apply to the farms. Well, just think about that for a second, for a nanosecond. Think about the logic of that, and it’s plain that is wholly and solely [sic] completely illogical. The fact that it doesn’t apply to the Laverton North plant, as specified, does not mean the opposite is true, even as much as [the prosecutor] would like it to mean that.
In his written submissions before this court, counsel for Baiada also put an alternative argument. He contended that, although the Heads of Agreement provided that it applied to ‘the processing plant at Pipe Road Laverton North or as directed by Baiada’, there was no evidence that Baiada ever ‘directed’ that it was to apply to Houben Farm.
In my view, it is plain that the Heads of Agreement did apply to Houben Farm. Given that all of the chicken catchers’ activities were intended to take place on the farms, and that the Heads of Agreement was directed to defining and directing those activities, the natural and ordinary meaning of clause 1(c) of the Heads of Agreement is that the document was intended to apply to Houben Farm in relation the catching of chickens loaded there for shipping to the Laverton North plant or such as other plant as might be directed.
It follows that whether or not Baiada gave a direction that the Heads of Agreement should apply to Houben Farm was irrelevant. The question was whether Baiada had contractual power to give safety directions in relation to the loading activities at Houben Farm. In my view, the jury was right to find that it did.
Reasonably practicable?
That leaves the question of whether there was evidence sufficient for the jury to be satisfied that it was reasonably practicable for the applicant to give those sorts of directions.
According to the evidence, the procedures which should have been taken to ensure health and safety, as particularised in the presentment, were known industry wide. Indeed, Baiada’s OH & S procedures for operations at its own processing plants incorporated those procedures. Representatives from Baiada were in the habit of travelling to the farms to check on operations from time to time. Baiada issued a written instruction to another of its transport contractors, Rodon Transport, on 16 December 2005, directing Rodon as to the procedures to be followed when loading or unloading its trucks. Baiada also controlled the days and times at which chickens would be picked up and had the power, which it exercised on at least one prior occasion, to direct transport operators as to the manner in which trucks should be loaded.
In Associated Octel, Stuart Smith LJ said that :
The question of what is reasonably practicable is a matter of fact and degree in each case. It will depend on a number of factors so far as concerns operations carried out by independent contractors; what is reasonably practicable for a large organisation employing safety officers or engineers contracting for the services of a small contractor on routine operations may differ markedly from what is reasonably practicable for a small shopkeeper employing a local builder on activities on which he has not expertise. The nature and gravity of the risk, the competence and experience of the workmen, the nature of the precautions to be taken are all relevant considerations.[6]
[6]Ibid 1063.
In ARC Roofing,[7] this court followed that approach, and it has not been suggested that we should not follow it in this case.
[7](2004) 11 VR 187, 213 [68].
According to that test, it was open to the jury on the basis of the evidence to which I have referred to find that it was reasonably practicable for Baiada to direct DMP to adopt the sorts of safety procedures which the Crown contended should have been observed and which were in fact later observed following Mr Azzopardi’s death.
Grounds 2 and 3 – Jury directions as to clause 10
Next, under cover of Grounds 2 and 3, counsel for the applicant submitted that the judge erred in leaving the jury to determine the meaning of clause 10 of the Heads of Agreement, or alternatively in failing to direct them that its meaning was to be determined objectively in accordance with the meaning which it might be supposed honest and reasonable business persons would ascribe to it.
I reject both contentions. The construction of the Heads of a Agreement was not simply a question of law, but a question of mixed fact and law, as to which the judge’s directions were adequate.
Strictly speaking, the ascertainment of the terms of a contract in writing is a three stage process. The first step is to decide whether the words of the contract have been used in the sense which they have in ordinary English or in some legal, technical or other special sense. That is a question of law for the judge.[8] Secondly, if the words have been used in the sense which they have in ordinary English, it is necessary to decide the meaning of the words. That is ordinarily described as ‘interpretation’, and it is a question of fact for the jury.[9] If the words have been used in some non-legal technical sense, the ascertainment of their meaning is also a question of fact for the jury.[10] But if it is decided that the words have been used in the sense of some legal meaning, the ascertainment of that meaning is a question of law for the judge.[11] Thirdly, once the meaning of the terms of the contract has been ascertained, it is necessary to determine the legal effect of the meaning of the terms as so found. That process is ordinarily described as ‘construction’, and it is also question of law for the judge.[12]
[8]NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509, 511–512; Brutus v Cozens [1973] AC 854, 861; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389, 395.
[9]Chatenay v Brazilian Submarine Telegraph CoLtd [1891] 1 QB 79, 85; Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60, 78; NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509, 512.
[10]Simpson v Margitson (1847) 11 QB 23; 116 ER 383; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389, 395.
[11]Ibid.
[12]Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60, 78; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389, 395; see also Chitty on Contracts, 29th ed, Vol 1, General Principles, [12-045]–[12-046]; Greig & Davis, The Law of Contract, (2004) 404–5.
In this case, there was no suggestion, and no reason to suppose, that the terms of the Heads of Agreement were used in a sense other than their ordinary English meaning. It was, therefore, a question of fact for the jury to determine the meaning of the terms of the Heads of Agreement, and a question of law for the judge to determine the legal effect of that meaning.
As the trial was conducted, the only issue as to the meaning of the terms of the Heads of Agreement, as opposed to their legal effect, was whether they applied only to operations at the North Laverton processing plant (or perhaps to that and other processing plants) or also to loading operations at Houben Farm. As has been seen, the Crown contended that they applied to Houben Farm and the defence contended that their operation was limited to the North Laverton plant (or perhaps to that and other processing plants). It was accepted that, if the meaning of the terms was that they were applicable to Houben Farm, their legal effect was to arm Baiada with contractual power to control loading operations at the farm.
The judge so directed the jury as follows:
The defence maintains that in this regard that [the] requirement [to abide by Baiada’s directions as to loading operations] relates to Laverton and/or other processing sites, but not to grower sites. These matters as it was submitted, would have been expressly included, that is if they were to apply to grower sites had the parties so intended. I tell you that, as a matter of law that if you were satisfied that the prosecutor’s contention is correct then that is evidence that there was a power of control [to] direct the subcontractors, particularl[y] [DMP] Poultech, as to what it should do with regard to the matters set forth in the particulars [of offence]. Ultimately, it’s a matter for you to assess.
As I see it, that direction accorded precisely with the required division of responsibilities between the jury, to find as a matter of fact the meaning of the terms of the contract, and the judge, to determine the legal effect of that meaning. Although brief, it was sufficient to convey to the jury, in accordance with that division of responsibilities, what the jury were required to ascertain.
That leaves the complaint that the judge failed to direct the jury to construe the Heads of Agreement in accordance with the meaning which it might be supposed that honest and reasonable business persons would ascribe to it. In my view, the complaint is misplaced.
In one sense, it is correct to say that the meaning of the terms of a contractual document is to be determined by reference to what a reasonable person would have understood them to mean.[13] That precept, however, is directed to the construction of the terms of a contract, in the sense of the determination of their legal effect, as opposed to the ascertainment, as a question of fact, of their meaning. As such, it is directed to a function which is beyond the province of the jury.
[13]Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, 179 [41].
Admittedly, in cases which are tried by judge alone, the processes of interpretation and construction are liable to merge and, in that context, one might properly say that a judge should approach the whole process with the standards of honest and reasonable business people steadily in view.[14] But in a case of this kind, where the jury is the arbiter of fact, it would infuse the process with undue complexity, and the potential for error, to approach the process as if it were the same. Apart from anything else, in the absence of admissible evidence as to the standards of honest and reasonable business people, the whole idea is something of which a jury may not have an accurate conception.
[14]Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451, 461–2 [22].
In my view, it is enough and it is preferable to direct the jury, as they were directed in this case, that they should judge the issues of fact with which they are concerned, fairly and impartially according to the evidence before them.
Ground 4 – Jury directions as to practicability
Finally, under Ground 4, counsel for Baiada contended that the judge erred by failing to direct the jury that, if Baiada had control over relevant matters, Baiada was entitled to rely on the expertise of its independent contractors to take appropriate steps to safeguard the health and safety of their employees.
That contention cannot be accepted in the broad terms in which it was stated. As has been seen, it was a question of fact for the jury whether, assuming Baiada had control, its engagement of DMP as an independent contractor was enough to discharge Baiada’s obligation to provide and maintain for employees so far as was reasonably practicable a working environment that was safe and without risks to health. It would have been wrong for the judge to direct the jury to hold that engagement of DMP and Azzopardi Haulage was enough to discharge Baiada’s obligation.
I am persuaded, however, that Baiada has legitimate cause for complaint about the judge’s failure to direct the jury that they could not convict Baiada of failing to do what was reasonably practicable to provide and maintain a safe working environment in respect of the loading operations unless they were satisfied beyond reasonable doubt that Baiada’s engagement of DMP and Azzopardi Holdings was insufficient to discharge Baiada’s obligation to do what was reasonably practicable to provide and maintain a safe working environment in that respect.
At trial, defence counsel took exception to the judge’s failure to direct the jury to that effect, and the judge later redirected the jury on the point. But the redirection went no further than this:
The second thing, this case is really about the issue of whether Baiada had control over the independent contractor, and particularly [DMP] Poultech. The Crown says it did, real or actual, the defence says there is no evidence that it did. And that in terms of whether it was reasonably practicable to do so it relied upon an expert independent contractor. If you are not satisfied with the Crown case against the accused company then that’s the end of it. If you were so satisfied then you might consider whether again it was reasonably practicable, or that was satisfied by the use of an expert independent contractor in terms of its agreement to pick up chickens.[15]
…
[Defence counsel] said again – after going through Exhibit K11, which I won’t do with you now – but [he] submitted again that [if] they were [in control], that is Baiada were entitled to rely upon independent expert contractors to do that matter.
[15]Emphasis added.
Arguably, the redirection was sufficient to remind the jury of defence counsel’s argument that Baiada’s engagement of DMP was sufficient to discharge Baiada’s obligation to do what was reasonably practicable to provide and maintain a safe work site in the designated respect. I say, ‘arguably’ because, with all respect to the judge, the meaning of the re-direction is hardly clear. But it was certainly not sufficient to convey to the jury, with the weight of the judge’s authority, that the jury were bound to consider whether the engagement of DMP and Azzopardi Haulage was sufficient to discharge Baiada’s obligation to do what was reasonably practicable to provide and maintain a safe work site in relation to the loading activities. To the contrary, by referring to defence counsel’s submission on the point, and telling the jury that it was a matter which they ‘might consider’, the judge in effect implied that the jury were at liberty to ignore it at their option.
Although the issue of reasonable practicability did not arise until late in the trial, in the end it turned out to be one of fundamental importance to Baiada’s defence. What was needed, therefore, was a clear direction that, if the jury were satisfied that control had been established, they were bound to go on and consider whether they were satisfied beyond reasonable doubt that Baiada’s engagement of DMP and Azzopardi Haulage was not sufficient to discharge Baiada’s obligation to do what was reasonably practicable to provided and maintain a safe work site in the particular respect in issue. The jury should have been directed in clear terms that, unless the Crown had satisfied them of that beyond reasonable doubt, they were bound to acquit.
Proviso inapposite
That leaves the question of whether the judge’s failure to direct the jury to that effect was productive of a substantial miscarriage of justice within the meaning of the proviso to s 568(1) of the Crimes Act 1958. As the High Court decided in Weiss v The Queen,[16] that is to be assessed, in the first place, according to whether I am satisfied on the basis of the whole of the record, making allowance for the natural limitations that exist in the case of an appellate court proceeding wholly or substantially on the record, that Baiada was proved beyond reasonable doubt to be guilty of the offence under s 21(1) of the Act.
[16](2005) 224 CLR 300.
Based upon my assessment of the whole of the record, I think the Crown case was strong and that, if properly directed, it is probable that the jury would have been satisfied that Baida’s engagement of DMP and Azzopardi Haulage did not discharge Baiada’s obligation to do what was reasonably practicable to provide and maintain a safe work site in relation to loading activities at Houben farm.
But there is then a further question of whether, even if I am persuaded of Baiada’s guilt to the requisite degree, I think this to be a case in which it is still proper to allow the appeal.[17] In my view, it is.
[17]Ibid 316 [42]–[45].
The inadequacy of the judge’s direction denied Baiada the benefit of the jury’s consideration of one of its two principal defences. To that extent, the inadequacy of the direction deprived Baiada of ‘the ordinary entitlement of an accused person to have serious criminal charges decided in the first instance by a jury’.[18] While that is not the same as a ‘significant denial of procedural fairness’ – which the High Court in Weiss instanced as an exemplar of cases in which appeals should be allowed[19] – it is, in this case, functionally not dissimilar. In effect, it deprived Baiada of what the High Court described in Weiss as the ‘special features that attend the trial of serious criminal accusations before a jury whose verdicts are inscrutable but final, and sometimes reflect consideration of practical wisdom in deciding multiple issues presented by complex evidence’.[20]
[18]Ibid 315 [38].
[19]Ibid 316 [45].
[20]Ibid 315 [38].
So to say is not to suggest that a judge’s failure to give adequate directions, even directions on an important defence issue, is always reason to conclude that an
appeal should be allowed. Nor does it mean that at an appeal must or should be allowed in every case of a prosecution under s 21(1) of the Act in which a judge fails to direct a jury adequately as to the question of whether the engagement of a subcontractor is sufficient to discharge an employer’s obligation to do what is reasonably practicable to provide a safe system of work in relation to the task which the contractor is engaged to perform. Each case is unique and so the outcome in each case must depend on its particular facts and circumstances. My conclusion in this case means no more than that, in view of its particular facts and circumstances, including the manner in which the case was conducted at trial, the appeal should be allowed.
Conclusion and orders
In the result, I would grant leave to appeal, allow the appeal, quash the conviction and order that a new trial be had.
NEAVE JA
KYROU AJA:
We have had the advantage of reading in draft the judgment of Nettle JA. For the reasons given by his Honour, we agree that grounds of appeal 1, 2 and 3 are not made out and that ground 4 is made out. However, with great respect to his Honour, we are of the view that, in accordance with the principles in Weissv The Queen,[21] the proviso to s 568(1) of the Crimes Act1958 applies to the circumstances of this case and that the application for leave to appeal against conviction should be dismissed.
[21](2005) 224 CLR 300 (‘Weiss’).
The Crown was required to prove two matters in order to establish that the applicant was guilty of the offence created by s 21(1) of the Occupational Health and Safety Act 2004. First, it had to prove beyond reasonable doubt that the applicant had a right of control in respect of the loading and unloading of trucks by DMP’s
employees at Houben Farm. This was the central issue in the case. Counsel’s submissions at the trial focussed mainly on this issue, though the question of reasonable practicability was raised by defence counsel during his closing address.
Secondly, the Crown had to prove beyond reasonable doubt that the applicant had failed to provide ‘systems of work’ that were, ‘so far as reasonably practicable, safe and without risks to health’.[22] To do so, it had to satisfy the jury that the applicant had not discharged the duty in respect of Azzopardi Haulage’s employees who were working at Houben Farm by relying on DMP and Azzopardi Haulage to take safety measures to protect workers when trucks were loaded and unloaded at the farm.
[22]The onus of proof lay on the Crown to establish this requirement: Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249.
The Court’s discretion to apply the proviso to s 568(1) of the Crimes Act 1958 can be exercised on appeal where the trial judge has failed to direct a jury on all the elements of an offence or has misdirected the jury in part.[23] The Court is required to reach an independent conclusion on whether a substantial miscarriage of justice has actually occurred as a result of the misdirection. In the circumstances of this case there was no substantial miscarriage of justice. We take that view for the following reasons.
[23]R v Lambourn [2007] VSCA 187, [22] (Nettle JA, Ashley JA and Kaye AJA agreeing), Worsnop v The Queen [2010] VSCA 188, [37] (Ashley JA, Buchanan JA and Beach AJA agreeing), R v Cao (2006) 65 NSWLR 552, 570 (Howie J, Spigelman CJ and Barr J agreeing), Holland v The Queen (1993) 67 ALJR 946, 951 (Mason CJ, Brennan, Deane and Toohey JJ).
This was not a case in which the ‘natural limitations’ of an appellate court proceeding wholly or substantially on the record require this Court to conclude that we cannot reach the necessary degree of satisfaction about the applicant’s guilt. The criminal liability of the applicant did not turn on a question as to the credibility of any particular witness. Defence counsel cross-examined briefly only nine out of the 18 Crown witnesses[24] and did not call any defence witnesses. Some of the critical evidence was documentary, and forms part of the record before us. At the hearing of the application, it was not suggested that there had been a significant denial of procedural fairness at trial.
[24]Another witness was cross-examined but only on the voir dire.
The jury held that the applicant was guilty of an offence under s 21(1) of the Act. This is a factor which may be taken into account in deciding whether a substantial miscarriage of justice has occurred.[25] It is not irrelevant that, although the direction on the reasonable practicability requirement was inadequate, that element was not altogether ignored by his Honour, who re-directed the jury at the request of defence counsel in the terms set out by Nettle JA.
[25]Weiss (2005) 224 CLR 300, 317 [43].
In the particular circumstances of this case, we do not consider that it would have been open to the jury on the whole of the evidence to acquit the applicant on the basis that it took reasonably practicable steps to protect the health and safety of persons involved in loading the truck at Houben Farm by relying entirely on DMP and Azzopardi Haulage to put in place safety measures.
In resolving the factual issues relating to reasonable practicability, it is necessary for us to have regard to the matters set out in s 20(2) of the Act, which the judge read to the jury. Section 20(2) provides:
20 The concept of ensuring health and safety
…
(2)To avoid doubt, for the purposes of this Part and the regulations, regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety—
(a)the likelihood of the hazard or risk concerned eventuating;
(b)the degree of harm that would result if the hazard or risk eventuated;
(c)what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;
(d)the availability and suitability of ways to eliminate or reduce the hazard or risk;
(e) the cost of eliminating or reducing the hazard or risk.
It is clear from s 20(2) that the concept of reasonable practicability raises questions of degree and requires a balancing of potentially competing considerations. In some situations, safety and practicability may involve common sense considerations, while in other situations they may involve specialist skill and knowledge. Whether an employer has discharged its duty to provide systems of work that are, so far as is reasonably practicable, safe and without risks to health by engaging contractors will depend on the facts and circumstances of the case. The engagement of contractors may or may not discharge the employer’s duty depending on the evidence about the matters set out in s 20(2) of the Act and about other relevant matters, such as whether the activity that is performed by a contractor involves specialist skill or knowledge which the employer does not have and whether the employer is aware of any deficiencies in the contractor’s safety practices.[26]
[26]A similar approach to the factual issues was adopted by the Western Australian Court of Appeal in Reilly v Devcon Australia Pty Ltd (2008) 36 WAR 492, 511–12.
We have considered the whole of the record of the trial, including the evidence on each of the matters set out in s 20(2) of the Act. Neither DMP nor Azzopardi Haulage had specialist expertise in relation to the loading or unloading of modules which the applicant lacked. The risk that a truck driver might be seriously injured or even killed while a forklift was being used to load or unload trucks and the need to take precautions to prevent forklift accidents was obvious. The measures necessary to do so were well known to the applicant and throughout the industry. They were common sense measures which did not require specialist skill or knowledge. The applicant had entered into separate arrangements with the two contractors to undertake tasks in which their employees would be working in close proximity with one another at Houben Farm without giving the contractors any safety directions in relation to the performance of those tasks. It was reasonably practicable for the applicant to give such directions to ensure the safety of all employees engaged on those tasks. The applicant had control over when and how the loading and unloading of modules was performed at Houben Farm and had already issued safety instructions in relation to loading and unloading operations at its own plant. The only inference that was open on the evidence was that the costs of issuing safety directions to contractors was minimal compared with the gravity of the risk of harm. It was entirely practicable for the applicant to require the contractors to put loading and unloading safety measures in place and to check whether those safety measures were being observed from time to time.
Taken as a whole, the evidence has satisfied us beyond reasonable doubt that the applicant’s engagement of DMP and Azzopardi Haulage was insufficient to discharge its obligation to do what was reasonably practicable to provide a safe worksite in relation to the loading and unloading activities at Houben Farm. It follows that we are satisfied that the applicant was proved beyond reasonable doubt to be guilty of the offence under s 21(1) of the Act.[27]
[27]See Weiss (2005) 224 CLR 300, 316 [41].
We would therefore dismiss the application for leave to appeal.
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