Carmichael v Commonwealth of Australia

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 04624

BRIAN CARMICHAEL	Appellant
v
THE COMMONWEALTH OF AUSTRALIA (acting through its responsible agency, the Department of Defence)	Respondent

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JUDGE:	Incerti J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 February 2022
DATE OF JUDGMENT:	24 June 2022
CASE MAY BE CITED AS:	Carmichael v Commonwealth of Australia
MEDIUM NEUTRAL CITATION:	[2022] VSC 364

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APPEAL – Appeal from Magistrates’ Court under Criminal Procedure Act 2009 (Vic) s 272 – Work Health and Safety Act 2011 (Cth) ss 3, 17, 18, 19, 32 – Prosecution of Commonwealth of Australia (acting through its responsible agency, the Department of Defence) under Work Health and Safety Act 2011 (Cth) s 32 – Army training exercise – Electric shock and burn injuries to trainees following assembly of communication mast near high voltage power lines – Alleged failure to ensure health and safety – Alleged failure to provide and maintain safe systems of work – Charges dismissed by magistrate – Whether magistrate applied wrong legal test – Whether magistrate’s factual findings open on the evidence – Whether appellant required to prove that existing system of work was not ‘reasonably practicable’ – Whether appellant required to prove that respondent failed to use ‘due diligence’ in ensuring compliance with existing system of work – Grasso Consulting Engineers Pty Ltd v SafeWork NSW; Grasso v SafeWork NSW [2021] NSWCCA 288 considered – Cleanaway Operations Pty Ltd v Philip Hanel (Commonwealth: Comcare) [2022] SASC 52 considered – Appeal upheld but matter not remitted for retrial.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G Hill SC and Ms K Argiropoulos of counsel	Commonwealth Director of Public Prosecutions
For the Respondent	Ms F McLeod SC and Ms L Barrett of counsel	Moray & Agnew Lawyers

Introduction........................................................................................................................................ 1

Background......................................................................................................................................... 2

Charge 1.......................................................................................................................................... 2

The WHS Act...................................................................................................................................... 3

The notice of appeal.......................................................................................................................... 5

The magistrate’s reasons................................................................................................................... 8

Outcome of appeal............................................................................................................................. 9

Correct application of the WHS Act........................................................................................... 9
The magistrate’s key findings................................................................................................... 14

Ground 1............................................................................................................................................ 19

Appellant’s submissions............................................................................................................ 19
Respondent’s submissions......................................................................................................... 21
Consideration.............................................................................................................................. 23

Ground 2............................................................................................................................................ 30

Appellant’s submissions............................................................................................................ 30
Respondent’s submissions......................................................................................................... 33
Consideration.............................................................................................................................. 33

Ground 3............................................................................................................................................ 35

Appellant’s submissions............................................................................................................ 36
Respondent’s submissions......................................................................................................... 36
Consideration.............................................................................................................................. 37

Grounds 4 and 5............................................................................................................................... 38

HER HONOUR:

Introduction

This is an appeal on a question of law under s 272 of the Criminal Procedure Act 2009 (Vic) (‘CPA’) from orders made by the Magistrates’ Court on 19 November 2020 dismissing two charges under s 32 of the Work Health and Safety Act 2011 (Cth) (‘WHS Act’).

The charges stem from an incident during a night time training exercise at the Puckapunyal Training Area in regional Victoria on 4 July 2016. As part of a training course conducted by the Royal Australian Corps of Signals (a component of the Australian Army), a group of trainees was tasked with assembling a temporary radio mast known as a ‘Clark mast’. The Clark mast consists of a telescopic mast stabilised by three levels of four guy wires, with a removable telescopic antenna fitted at the top of the mast.

The night time exercise was ultimately undertaken at a different location to the site which had been approved for the training course and at which exercises had been conducted earlier that day (‘Site 4’ being the approved site). No day time reconnaissance had been conducted at the new location, and approval for the relocation was not sought or obtained as required. At approximately 7.50pm, a group of trainees began assembling the Clark mast. As the mast was being moved into a vertical position it came into close proximity to overhead energised high voltage power lines above the site. An ‘arcing event’ occurred and as a result one trainee received an electric shock and was rendered unconscious while another trainee sustained burn injuries. Thankfully, and remarkably, the trainees fully recovered and returned to work.

The officer in charge of the training course and night time exercise was Captain Daniel Wilson, who held the rank of lieutenant at the time (‘Lt Wilson’). Corporal Nikolas Smith (‘Cpl Smith’) was the appointed safety officer. Sergeant Brandon Smith (‘Sgt Smith’) was an experienced soldier who stepped in to assist with the training course due to staff shortages. Corporal Cindy Houlihan (‘Cpl Houlihan’) was a member of the directing staff for the training course.

Following the incident on 4 July 2016, the appellant laid two charges against the respondent under the WHS Act. The respondent pleaded not guilty and the charges were heard before a magistrate on 12, 13, 15, 16, 19, 20, 26, 27 and 29 October 2020. On 19 November 2020, the magistrate handed down her written decision (‘Reasons’) and made orders dismissing both charges.

By its notice of appeal dated 16 December 2020, the appellant raises two questions of law and five grounds of appeal and seeks orders that the magistrate’s orders be set aside and the matter be remitted to the Magistrates’ Court to be determined in accordance with law. The appeal was heard before me on 18 February 2022.

Background

Charge 1

The grounds of appeal all relate to charge 1:[1]
[1]Reasons, 1.

Charge 1 – Section 32 – Exposure of a person to risk of death, injury or illness (Category 2)
On or about 4 July 2016 at Puckapunyal Training Area and in other places in the State of Victoria pursuant to section 32, section 19(1)(a) and section 19(3)(c) of the Work Health and Safety Act 2011 (Cth) (“the Act”) the Commonwealth of Australia (“the Defendant”) acting through its responsible agency, the Department of Defence, failed to comply with a health and safety duty in that as a person conducting a business or undertaking the Defendant failed to ensure, so far as was reasonably practicable, the health and safety of workers engaged by the Defendant while those workers were at work in that business or undertaking and the failure exposed an individual to a risk of death or serious injury.

The particulars to charge 1 included:[2]
[2]Reasons, 2.

…
viii.The health and safety risk to which the workers were exposed was death or serious injury from electric shock as a result of coming into close proximity with live overhead power lines (“the risk”).
ix.There were reasonably practicable measures available to the Defendant to control the risk. The Defendant failed to provide a safe system of work that restricted access to places in the Puckapunyal Training Area where live overhead power lines were located when telescopic masts and antennas were to be used.
Further and better particulars of safe system of work
The provision of:
(a)An adequate written safety briefing as to the risk prior to conducting training in the use of telescopic masts and antennas carried out at night;
(b)A daytime assessment of the risk at any location to be used for training in the use of telescopic masts and antennas carried out at night; and
(c)An adequate oral safety briefing as to the risk prior to deploying for training in the use of telescopic masts and antennas carried out at night.

Relevantly, the reference to ‘any location’ in paragraph (b) of the further and better particulars responded, in part, to what the appellant alleged was a fundamental deficiency in the respondent’s existing safety brief. The relevant section of that brief reads as follows:

Reconnaissance is to occur on new sites during daylight hours and locations of overhead power lines are to be recorded and passed to the Safety Officer. These areas are to be avoided if antenna masts are to be used.[3]

[3]Reasons, [128].

The appellant asserted that the term ‘new’ was inherently ambiguous. Relevantly, Lt Wilson said that he did not consider the site to which he relocated the night time activity to be a ‘new’ site, as he had attended that site during the previous year as a trainee himself. The safety expert who provided evidence for the appellant, Mr Brett Higginbotham, relevantly opined that the term ‘new’ was ‘overly ambiguous and prone to subjectivity’.[4]
[4]Reasons, [68].

The WHS Act

Section 32 of the WHS Act provides:

Failure to comply with health and safety duty—Category 2
A person commits a Category 2 offence if:
(a) the person has a health and safety duty; and
(b) the person fails to comply with that duty; and
(c)the failure exposes an individual to a risk of death or serious injury or illness.

Section 19 of the WHS Act is headed ‘Primary duty of care’. Subsection 19(1) provides:

A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:
(a) workers engaged, or caused to be engaged by the person; and
(b)workers whose activities in carrying out work are influenced or directed by the person;

while the workers are at work in the business or undertaking.

Subsection 19(3) relevantly provides:

Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable:
(a)the provision and maintenance of a work environment without risks to health and safety; and

…
(c) the provision and maintenance of safe systems of work; and
…

Section 17 of the WHS Act, headed ‘Management of risks’ relevantly explains that:

A duty imposed on a person to ensure health and safety requires the person:
(a)to eliminate risks to health and safety, so far as is reasonably practicable; and
(b)if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.

In this regard, the ‘Object’ of the WHS Act set out in s 3 relevantly provides:

(1)The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by:
(a)protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work; and

…
(2)In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work as is reasonably practicable.

Section 18 defines what is ‘reasonably practicable’ in ensuring health and safety:

In this Act, reasonably practicable, in relation to a duty to ensure health and safety means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:
(a)       the likelihood of the hazard or the risk concerned occurring; and
(b)       the degree of harm that might result from the hazard or the risk; and
(c)       what the person concerned knows, or ought reasonably to know, about:
(i)        the hazard or the risk; and
(ii)       ways of eliminating or minimising the risk; and
(d)the availability and suitability of ways to eliminate or minimise the risk; and
(e)after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

The notice of appeal

The appellant’s notice of appeal dated 16 December 2020 reads as follows:

QUESTIONS OF LAW
1.What are the proper legal tests to be applied when adjudicating a charge of Failure [sic] to comply with health and safety duty — Category 2, contrary to sections 19 and 32 of the Work Health and Safety Act 2011 (Cth) (WHS Act)?
2.Did the learned Magistrate err in law when arriving at her decision to find the charges not proved in that she made findings of fact that were not reasonably open on the evidence?
GROUNDS OF APPEAL
I.The learned Magistrate erred in law in that when considering whether the Respondent had failed to comply with a health and safety duty, she failed to consider whether the safety measures alleged by the Appellant were “reasonably practicable”, as required by sections 18 and 19 of the WHS Act.
Particulars
The learned Magistrate considered that the prosecution must “establish beyond reasonable doubt that the existing system was not a reasonably practicable way of addressing the relevant risk” (at Decision [96], [164] and [168]).
II.The learned Magistrate erred in law in that when considering whether the Respondent had failed to comply with a health and safety duty, she failed to consider whether the safety measures alleged by the Appellant were “reasonably practicable”, as required by sections 18 and 19 of the WHS Act.
Particulars
The learned Magistrate considered that the prosecution must “establish that (the Respondent) failed to use due diligence to ensure that its’ [sic] practices and procedures were observed” (at [95] and [173]).
III.The learned Magistrate erred in law in that when considering whether the Respondent had failed to comply with a health and safety duty, she failed to consider whether the safety measures alleged by the Appellant were “reasonably practicable”, so as to eliminate or minimise the alleged risk to health and safety, as required by sections 17, 18 and 19 of the WHS Act.
Particulars
The learned Magistrate considered that she could not be “satisfied that if the (alleged safety measure had been provided and maintained) it would have controlled the risk” (at [174]–[175]).
IV.The learned Magistrate erred in law in that she made a finding of fact that was not reasonably open on the evidence.
Particulars
The learned Magistrate erred in finding that it was not reasonably foreseeable that Lt. Wilson would decide that the changed location of the night exercise was not a “new site” requiring prior daytime reconnaissance (at [146]–[149] and [170]–[175]).
V.The learned Magistrate erred in law in that she made a finding of fact that was not reasonably open on the evidence.
Particulars
The learned Magistrate erred in finding that by early June 2016 an adequate safety brief written specifically for the particular training had been prepared and attached to the Operational Order for the training exercise ([121]–[122], [128] and [165]).

The appeal was brought under s 272(1) of the CPA which states:

A party to a criminal proceeding (other than a committal proceeding) in the Magistrates’ Court may appeal to the Supreme Court on a question of law, from a final order of the Magistrates’ Court in that proceeding.

In SKM Services Pty Ltd v Magistrates’ Court of Victoria & Anor, Lansdowne AsJ discussed the nature of appeals under s 272 of the CPA as follows:[5]

An appeal pursuant to s 272 is on a question of law only. If on proper analysis the alleged error relates to a conclusion of fact, then that will not amount to an error of law if there was some evidentiary foundation for the conclusion. It may be an error of law if there is no evidence to support it, or the conclusion is irrational, illogical or unreasonable in the legal sense.
Although an appellant must show an error of law, that in itself is not necessarily sufficient to succeed in the appeal. What must be shown is that the ultimate outcome was vitiated by error of law. In relation to an error of law constituted by a finding of fact unsupported by evidence, such an error will be a vitiating error if it ‘materially affected’ the decision. A vitiating error will be shown if it is not possible to say that the same outcome would have been reached had the error not been made.
In Patrick Stevedoring Pty Ltd v Chasser (Victorian WorkCover Authority),[6] an appeal pursuant to s 272, Osborn J (as he then was) rejected a submission that any error of law would entitle the appellant to a retrial. He held that s 272(9) reserved a discretion in the Court in respect of the grant of relief and it follows that:
the Court retains a discretion not to interfere with a Magistrate’s decision to convict in circumstances where, although the decision has been accompanied by some error of law, this Court is persuaded that that error is not a vitiating error.[7]

[5]SKM Services Pty Ltd v Magistrates’ Court of Victoria & Anor [2019] VSC 460, [48]–[50] (citations omitted).

[6][2011] VSC 597.

[7]Ibid [82].

In the context of an appeal from the Magistrates’ Court it is appropriate to have regard to the pressure of work under which magistrates operate, and as such a magistrate’s reasons should not be ‘construed minutely and finely with an eye keen attuned to the perception of error’.[8] I have had regard to this principle when analysing the magistrate’s reasons.
[8]Makrogiannis v Magistrates’ Court of Victoria & Anor [2021] VSC 190, [122] quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287.

The magistrate’s reasons

The magistrate’s reasons run to 33 pages and are comprised of the following sections:

(a) a recitation of the two charges in full;

(b) relevant background to the incident;

(c) a summary of the ‘issues in dispute’. The magistrate relevantly notes that (at paragraphs 20 and 21 of her reasons):

The issues that are to be determined in this case are:
i).Did Defence fail to comply with its health and safety duties by failing to take the steps particularised in paragraphs [ix] of each of the charges?
ii).Did Defence’s breach of duty expose the three signallers to a risk of death or serious injury?

The prosecution bears the onus of proving each of these elements beyond reasonable doubt.

(d) a summary of the witnesses’ evidence;

(e) extracts of the relevant sections from the WHS Act;

(f) a long list of legal propositions derived from cases that have considered various current and historical work health and safety legislation in multiple jurisdictions;

(g) a recitation of the pleaded risk to health and safety, and the particulars of a safe system of work asserted by the prosecution in charge 1;

(h) a detailed overview of the respondent’s existing system of work;

(i) an overview of the planning and approval undertaken in respect of the training course;

(j) a close examination of the events of 4 July 2016, including what led to the decision to change the location of the night time activity from Site 4 to an unapproved location;

(k) consideration of the phrase ‘new site’, and whether a reasonable person in the respondent’s position would have anticipated the possibility of Lt Wilson’s interpretation of the word ‘new’ to exclude a site he had attended the previous year as a trainee;

(l) consideration of other reasonably practicable measures available to address the relevant risk to health and safety (this section mainly involves consideration of charge 2); and

(m) a summary of the magistrate’s conclusions.

Outcome of appeal

As explained later in these reasons, I consider that the appellant has made out the first ground of appeal, but not grounds 2 and 3. However, for the following reasons, I have determined not to remit the matter for retrial, and have not considered grounds 4 and 5.

Correct application of the WHS Act

The underlying cause of this appeal is disagreement regarding the legal tests required by s 32 of the WHS Act when applied to the health and safety duty prescribed by s 19 of the WHS Act. It is therefore appropriate to make some general comments on the application of those sections.

At paragraphs 73 to 104 of her reasons, the magistrate compiled a long list of legal propositions derived from cases that have considered various current and historical work health and safety legislation in multiple jurisdictions. A potential danger with this approach is that many of the propositions are derived from judicial consideration of differently worded legislation to the WHS Act, and may not apply at a sufficient level of generality to justify their application to the present case. While such authorities can provide guidance on how the WHS Act should be construed and applied, care must be taken to ensure that reliance on judicial consideration of similar statutes does not lead to a departure from the task of applying the statute in question.

It is also important to recognise that the magistrate did not have the benefit of detailed appellate authority on the application of the relevant provision of the WHS Act. Since the magistrate’s decision, the New South Wales Court of Criminal Appeal has handed down its decision in Grasso Consulting Engineers Pty Ltd v SafeWork NSW; Grasso v SafeWork NSW [2021] NSWCCA 288 (‘Grasso’), which provides guidance on the application of the virtually identically worded ss 17, 18, 19 and 32 of the Work Health and Safety Act 2011 (NSW) (‘WHS Act (NSW)’).

The elements of an offence under s 32 of the WHS Act are:

(a) the existence of a health and safety duty (‘duty element’);

(b) failure to comply with that duty (‘breach element’); and

(c) exposure of an individual to the risk of death or serious injury or illness resulting from the failure to comply with the duty (‘exposure element’).

The breach element is assessed prospectively by reference to the particularised measures or steps set out in the charge, which the defendant failed to take. In the case of the s 19(1) duty, the relevant question is whether the failure to take those steps constituted a failure to eliminate or minimise risks to health and safety ‘so far as is reasonably practicable’, by reference to the factors set out in s 18. If the finder of fact concludes that it was reasonably practicable for the defendant to take one or more of the particularised steps, this will naturally lead to the conclusion that the defendant has not eliminated or minimised risks to health and safety ‘so far as is reasonably practicable’, and thus that the duty has been breached.

As detailed in my consideration of the first ground of appeal, the relevant question is whether a particularised step was reasonably practicable for the defendant to take, not whether it was ‘reasonably practicable’ in some abstract sense. That question requires consideration of the relevant context, including any existing system of work in place. If, when viewed in the context of the existing system, a particularised step would not have contributed to eliminating or minimising risks to health and safety in any meaningful sense, it may be appropriate to conclude that it was not reasonably practicable for the defendant to take, and would thus be incapable of supporting a finding that the defendant failed to eliminate or minimise risks to health and safety ‘so far as is reasonably practicable’.

The correct application of what I have termed the ‘exposure element’ of the offence is currently the subject of some judicial disagreement. In Grasso, the New South Wales Court of Criminal Appeal referred to this element as importing notions of causation.[9] On 26 May 2022, the Supreme Court of South Australia handed down its decision in Cleanaway Operations Pty Ltd v Philip Hanel (Commonwealth: Comcare) [2022] SASC 52 (‘Cleanaway’). Cleanaway was delivered after closing submissions were completed in this case and I was therefore not addressed by the parties on the relevance of Cleanaway to the present case. Given my conclusions, I do not consider this creates any prejudice or disadvantage to either party.
[9]Simpson AJA referred to ‘exposure to risk caused by’ non-compliance with a duty and the ‘causation issue’ (at [7]), and Walton J and Cavanagh J separately discussed ‘causation’ in some depth at [26]–[29] and [225]–[235], respectively.

In Cleanaway, Chief Justice Kourakis relevantly held that ‘no question of causation arises, or at least … it does not arise in the same way as it does when actual harm or damage is an element of an offence or cause of action’.[10]
[10]Cleanaway Operations Pty Ltd v Philip Hanel (Commonwealth: Comcare) [2022] SASC 52, [51].

The apparent disagreement seems to derive from ‘causation’ having such a well defined meaning and associated body of jurisprudence in other areas of the law – in particular, the law of negligence, where the plaintiff must establish a causal connection between the alleged breach of duty and the harm or damage for which they seek compensation.

Clearly, the offence created by s 32 of the WHS Act does not require proof of any harm or damage. However, that does not mean that the exposure element cannot be discussed or understood by reference to a causal relationship of some kind. In its broadest sense, ‘causation’ is simply the ‘relation of cause to effect’.[11] Both Grasso and Cleanaway make clear that, for the purposes of s 32 (when applied to the duty in s 19(1)):

(a) the relevant ‘cause’ is the failure to eliminate or minimise risks to health and safety ‘so far as is reasonably practicable’; and

(b) the relevant ‘effect’ is the exposure of a person to a risk of death or serious injury or illness – and not the actual occurrence of such death, injury or illness.

[11]Ray Finkelstein et al (eds), Australian Legal Dictionary (LexisNexis Butterworths, 2^nd ed, 2016), 229.

Whereas the New South Wales Court of Criminal Appeal was comfortable describing the relationship as a ‘causal’ one, Kourakis CJ preferred the language of a ‘connection’ between the breach and exposure in order to avoid ‘[conflating] the common law approach to causation of an event or injury with the statutory duty to eliminate or minimise risks which may never eventuate’.[12] As noted by Kourakis CJ, this approach is consistent with the Victorian Court of Appeal’s observation in Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd that:

Logically, a failure to eliminate a risk can be said to cause, or contribute to, the persistence of the risk. But the statute does not formulate the issue in those terms and, in our view, the language of causation is best avoided in this context. To speak of a ‘causal connection’ in this context is liable to suggest — incorrectly — that these offences require proof of a causal link between the employer’s conduct and the accident or injury (which, as we have said, will typically have triggered the investigation and prosecution).[13]

[12]Cleanaway Operations Pty Ltd v Philip Hanel (Commonwealth: Comcare) [2022] SASC 52, [53].

[13]Cleanaway Operations Pty Ltd v Philip Hanel (Commonwealth: Comcare) [2022] SASC 52, [55] quoting Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55, [83] (footnotes omitted).

While these comments are undoubtedly relevant to the instant case, it is also important to recognise that the offence provision considered by the Victorian Court of Appeal did not include ‘exposure to risk’ as a separate offence element and, as such, is conceptually more analogous to the ‘category 2’ offences in s 33 of the WHS Act.[14]
[14]The relevant provision was s 21(1) of the Occupational Health and Safety Act 2004 (Vic), which provided that ‘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’: see Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55, [30].

In my view, the fundamental difficulty presented by the exposure element of the offence created by s 32 of the WHS Act is not labelling the relationship between breach and exposure to risk (whether that label be ‘causation’, a ‘nexus’ or some other ‘connection’), but rather defining the risk to which a person was actually exposed, and the strength of the relationship between the breach and exposure required to found criminal liability:

(a) in relation to defining the risk, I note Walton J’s observation in Grasso that the exposure element of the offence is concerned with the ‘risk as pleaded in the particular circumstances at a particular time when a person is exposed to risk’ (emphasis added).[15] As noted by Cavanagh J, this requires a retrospective assessment by reference to the particularised measures and the relevant events that actually occurred;[16] and
[15]Grasso Consulting Engineers Pty Ltd v SafeWork NSW; Grasso v SafeWork NSW [2021] NSWCCA 288, [29] (per Walton J) citing The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O’Sullivan (2005) 143 IR 57; [2005] NSWIRComm 198, [45].
[16]Grasso Consulting Engineers Pty Ltd v SafeWork NSW; Grasso v SafeWork NSW [2021] NSWCCA 288, [99], [235] (per Walton J).

(b) in relation to the strength of the relationship, I note that:

(i) Walton and Cavanagh JJ in Grasso each separately required a ‘significant or substantial’ relationship between the breach and exposure to risk (applying Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338),[17] Walton J further noting that the connection ‘must be sufficiently substantial to permit a conclusion of criminal responsibility’;[18] whereas

(ii) Kourakis CJ in Cleanaway formulated the relevant test as whether compliance with the duty (to take all reasonably practicable measures) ‘would have materially reduced the risk to which workers or others were exposed even if the risk substantially arose out of circumstances for which the PCBU [person conducting a business or undertaking] was not responsible’.[19]

[17]Grasso v SafeWork NSW [2021] NSWCCA 288, [26] (per Walton J), [230] (per Cavanagh J).

[18]Grasso v SafeWork NSW [2021] NSWCCA 288, [28] (per Walton J) citing Royall v The Queen 172 CLR 378.

[19]Cleanaway Operations Pty Ltd v Philip Hanel (Commonwealth: Comcare) [2022] SASC 52, [18].

To the extent that the tests enunciated in Grasso and Cleanaway are substantively different, I am not satisfied that Grasso is ‘clearly wrong’, and am therefore bound by Grasso, being the decision of an intermediate appellate court in respect of virtually identical legislation.[20] However, for reasons that will become clear, my decision does not depend on resolving this issue.
[20]Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89.

The magistrate’s key findings

Each ground of this appeal relates to the breach element of the offence. While the appellant’s written submissions extend to the ‘proper test for causation’ (which I have described as relating to the ‘exposure element’), it abandoned those submissions at the hearing before me, conceding that it was ‘not obvious how [the proper test of causation] relates to our grounds of appeal or our questions of law’.[21]
[21]Transcript of Proceedings, Carmichael v Commonwealth of Australia (Supreme Court of Victoria, S ECI 2020 04624, Justice Incerti, 18 February 2022) (‘T’) 2.13–14 (Mr Hill).

While the magistrate’s reasons, at times, suffer from an imprecise articulation and application of the relevant legal tests and her analysis of the breach element and exposure element are difficult to disentangle, her factual findings relevant to the exposure element are unambiguously clear. Those findings are summarised below. Given her imprecise legal formulations, I am unable to say with certainty that the magistrate related those factual findings specifically to the exposure element of the offence. However, in my view, those findings are so strongly made and repeated, and so central to the magistrate’s reasons, that a positive finding on the exposure element is effectively inconceivable.

Before listing the relevant factual findings, it is important to note that the magistrate identified multiple risk mitigation measures within the respondent’s existing system of work in addition to the safety brief for the activities (which was the main focus of charge 1).[22] In particular, the existing system of work required approvals to be obtained prior to any change to the location for activities,[23] regardless of whether the location was a ‘known’ or ‘new’ site. As the magistrate explained:

Planning for the exercise was undertaken in advance of EXMC07. This was a fairly lengthy process, which occurred over several weeks and involved the preparation and approval of various key documents, including the Operational Order, the Risk Appreciation Summary and the Safety Brief. It was guided by a plethora of documents including various Military Risk Management Instructions, Standing Orders and Operating Procedures.
The planning and approval process for EXMC07 required the location for the entire activity to be nominated because there are several controls over the use of the various approved training Defence sites, within the Puckapunyal Military Area, including those within the Puckapunyal Training Area.
In particular, the use of sites within the Puckapunyal Training Area (as well as the broader military area) is governed by the Puckapunyal Range Standing Orders (Range Orders). The Range Orders aim “to provide users of the PTA with the safety, coordinating and control orders and instructions required for the safe and efficient conduct of training.” Clearly an important objective for an area used for activities such as live firing and armoured vehicle training.
All personnel entering the Puckapunyal Training Area are required to be conversant, and to comply, with the Range Orders. They are expressly identified as being lawful ‘general orders’ to all ADF members. That is, they are a mandatory requirement for members to adhere to and failures to do so may expose members to prosecution for offences under the Defence Force Discipline Act (Cth) 1982.
The Range Orders require approval to be obtained for a variety of activities, including individual or unit personnel training. Applications must detail the area within Puckapunyal that is proposed to be used so that Puckapunyal Range Control can manage bookings and ensure areas are not double booked, or that unsuitable sectors are selected. There is no permission to enter other parts of the Puckapunyal Training Area without first obtaining approval or clearance of Range Control. Requirements are in place which oblige users to inform Range Control of their proposed locations at the daily range safety briefing, and there are formal departure procedures which involve participants informing Range Control when they are leaving the area.[24]

[22]See Reasons, [113]–[114].

[23]See Reasons, [114(b)], [119], [139]–[141], [168].

[24]Reasons, [115]–[119].

The magistrate also expressly noted that the relevant Operational Order prescribed Site 4 as the area in which the activity was to be conducted. There was no permission for the activity to be conducted on any other site on 4 July 2016.[25]
[25]Reasons, [138].

Turning now to the issue of exposure to risk – the overriding and emphatic finding that permeates the magistrate’s reasons is that, on the night in question, several employees of the respondent departed from the strict requirements of the respondent’s existing system of work in an entirely unforeseeable way. That is evident from her statements that:

(a) ‘[c]learly the SOP’s [standard operating procedures] were ignored or overlooked, and this was not remedied by the OIC [officer in charge], who failed in his obligations to carry out the activity in accordance [with] the strict protocols and procedures’ (at [129]);

(b) conversations between the officer in charge, Lt Wilson, and the safety officer, Cpl Smith, demonstrate ‘a critical departure from the system of work which was designed to insert checks and balances by separating the role of safety officer from OIC [officer in charge]. Here when the Safety Officer raised concerns about the change of site, he was over ruled [sic] by his superior officer’ (at [137]);

(c) ‘[d]espite knowing that Site 4 was the approved area for the activity, none of the supervising staff (i.e. Lt Wilson, Sgt Brendan Smith, Cpl Nikolas Smith) sought any approval to relocate from Site 4. Indeed, the evidence is that they were all concerned about the necessity or requirement to obtain approval yet ignored it’ (at [139]);

(d) ‘[t]hose in charge demonstrated a cavalier willingness to depart from the strict protocols in place, the “safe system of work”, and shift to a site, which had not been either viewed in daylight or adequately inspected with white light to reveal the presence of the serious hazard of overhead powerlines’ (at [140]);

(e) Lt Wilson ‘conceded that what should have happened was that they could have ceased or paused the activity, whilst he contacted his superiors, who would then have either directed him to continue the activity at Site 4, or alternatively move to another approved site’ (at [142]);

(f) the need for safety had ‘been so clearly repeatedly drilled into and proscribed [sic] for all concerned’ (at [147]);

(g) ‘Cpl Nikolas Smith’s evidence was that he was aware that the decision to relocate to Lt Wilson’s site did not meet the requirements of the Safety Brief, and that a daylight reconnaissance should have occurred before the activity took place’ (at [153]);

(h) ‘[t]he incident here occurred because of a confluence of failures by several people to comply with safe, established and understood procedures, systems and requirements’ (at [171]); and

(i) ‘[h]ad Lt Wilson followed the strict rules he was required to follow the trainees would not have been exposed to this risk’ (at [175]).

These extracts reveal, on any reading, the magistrate’s clear view that the trainees’ exposure to risk was due to a confluence of failures by several people to comply with the existing system of work, and not the respondent’s failure to include in its system of work the particularised measures outlined in the two charges. The relevant officers had no authority to relocate the training activity, regardless of whether the relocated site was ‘new’ or not. It was this unauthorised relocation that very clearly resulted in the Clark mast being erected near high voltage power lines, and thus the trainees’ exposure to risk – not the failure to adopt the particularised measures.

While the magistrate did not expressly relate the above findings to the exposure element of the offence (and at times appeared to discuss them in terms of breach), her substantive conclusion is inescapable. It is abundantly clear that, in the magistrate’s view, the respondent’s failure to include the particularised measures was not a ‘substantial or significant’ cause of the trainees’ exposure to risk (in the language of Grasso, applying Bulga), and that the institution of those measures would not have ‘materially reduced’ the risk to which the workers’ were exposed (in the language of Cleanaway).

While Kourakis CJ in Cleanaway eschewed the language of ‘causation’, his Honour’s formulation of one scenario where the required nexus would not be established is particularly apt:

… the failure to take a reasonably practicable measure which in the ordinary course of events might have exposed another to a risk will not do so in the face of other unrelated, overwhelming and catastrophic circumstances which could not practicably have been anticipated.[26] [emphasis added]

[26]Cleanaway Operations Pty Ltd v Philip Hanel (Commonwealth: Comcare) [2022] SASC 52, [52].

In my view, a positive conclusion on the exposure element of the offence – regardless of its precise formulation – was simply not open on the magistrate’s factual findings as summarised above.

There is one important caveat to this. Had the appellant asserted that the respondent’s existing system of work suffered from inadequate compliance measures, I would have been less comfortable in concluding that the requisite relationship between the pleaded breach and exposure to risk was not open on the magistrate’s factual findings. In those circumstances, the identified non-compliance might itself evidence an inadequate system of work. However, that was not the case here. While the magistrate expressly noted that the evidence did not reveal a failure by the respondent to use due diligence in ensuring compliance with its existing system of work, this is not how the appellant had put its case against the respondent.

Therefore, notwithstanding the error made by the magistrate in her consideration of the breach element of charge 1 (as outlined in my consideration of the first ground of appeal), I am satisfied that this error does not undermine her strong factual findings which effectively necessitated a negative finding on the separate issue of exposure to risk.

As such, the appellant has failed to demonstrate that the magistrate’s ultimate decision to dismiss the charges was erroneous. Accordingly, I will not make an order remitting the matter for retrial.

While the potential cost of a retrial has not factored in my decision, it is nevertheless appropriate to acknowledge the significant time and expense already incurred in this matter. The incident occurred almost six years ago and the respondent has now instituted appropriate changes to its system of work. It would have been regrettable had the matter required another nine day trial to reach a resolution, placing further pressure on the limited resources of the Magistrates’ Court.

Ground 1

The first ground of appeal is that the magistrate erred in law by failing to consider whether the safety measures alleged by the appellant were reasonably practicable, ‘as required by sections 18 and 19 of the WHS Act’.[27] The appellant specifically attacks the following statements by the magistrate in her reasons:

The Court accepts that where an accused has in place a system of work to deal with the alleged risk, the prosecution must prove that it was not a “reasonably practicable” way of mitigating the risk [citing R v Powercor (Australia) Ltd [2005] VSCA 163 per Winneke P at [3] and Chernov JA at [4]].[28]
…
The Court concludes that the [appellant] has failed to establish beyond reasonable doubt that the existing system was not a reasonably practicable way of addressing the relevant risk.[29]
…
Considering the section 18 factors, it is apparent that the controls or systems that were in place were [a] reasonably practicable way of addressing the identified risk.[30]
[27]Notice of appeal dated 16 December 2020, 2.
[28]Reasons, [96].
[29]Reasons, [164].
[30]Reasons, [168].

Appellant’s submissions

In its written submissions, the appellant submitted that (at paragraphs [37] to [41] of its submissions):

It is not an element of a charge of an alleged breach under the WHS Act to show that the system of work in fact used did not comply with the duty. The requirement is to show that a system of work alleged was reasonably practicable.
It has not ever been the law that there is a further, or separate, element to prove a negative — that the system of work in fact applied (or more usually supposed to have been applied) was deficient. That might be inferred in some cases because some obvious step is missing, but that is not the way the proof of the charge operates. Guilt was established when the physical elements were proven as the offence is one of strict liability: ss 3.2, 6.1 of the Criminal Code (Cth).
The case cited for the proposition advanced by the Respondent [before the learned magistrate] does not contain it as a general proposition. R v Powercor concerned a proven failure to provide a safe system for undertaking electrical linework. The essential allegation was that a supervisor should have been at the workside (the prosecution case), and that the linesmen should not have been supervising one another (the defence case). The case was that a dedicated supervisor would have reduced the risk of the conduct that caused the incident. It is significant to understand how the prosecution put its case on the facts. Cummins AJA, in rejecting the employer’s, appeal identifies at [103]-[104] that the core issue was:
“… It is clear that the jury well understood that the issue was the degree or level of supervision.
In my view the submissions on behalf of the respondent before this Court are demonstrably correct. The issue was not the existence but the sufficiency of supervision. For a conviction on Count 3 the prosecution had to prove beyond reasonable doubt that the applicant had not ensured so far as was practicable that persons were not exposed to risks to their health or safety arising from the conduct of the undertaking of the applicant. Central in this case to that essential matter was the establishment by the prosecution of the insufficiency of supervision. It is unsurprising that no exception was taken below by the applicant’s counsel. The judge’s directions were correct. In my view this ground fails.” (emphasis added)

That is, by the way the case was framed, it can be seen that the prosecution was seeking to prove a negative and it had set out to do so by its particulars. This explains the comments made by Winneke P at [3] and Chernov JA at [4]. That is, whether or not the prosecution had excluded the possibility that the system of work taken was sufficient. That is not this case. What was alleged was that a system that the appellant did not use was reasonably practicable and that the failure to adopt it exposed an individual to a risk of death or serious injury. Once the prosecution proved that, it was sufficient to establish guilt.

In oral submissions, the appellant submitted that, having regard to the objects of the WHS Act in s 3 of the WHS Act, as well as s 17 of the WHS Act, the respondent’s duty required it to either eliminate risks to health and safety, or minimise those risks, so far as was reasonably practicable and that this should be understood as requiring it to eliminate or minimise such risks to the greatest extent that was reasonably practicable.

The appellant submitted that the relevant statutory question is whether there were reasonably practicable steps that would have minimised the risk which were not taken. Rather than concentrating on the existing system, the magistrate was required to focus on the measures particularised in the charges and ask whether those steps were reasonably practicable. The appellant relies upon Poletti Corporation Pty Ltd v SafeWork NSW [2020] NSWCCA 243 (‘Poletti’) as support for the proposition that the ‘ultimate question to be determined’ is whether the particularised step was a reasonably practicable one to take.

The appellant submitted that a clear difference between the respondent’s existing system of work and the particularised measures was that the existing system only required daytime reconnaissance on new sites whereas the particulars to charge 1 would require daytime reconnaissance on all sites. The relevant question is whether this change was a reasonably practicable step which would have ‘minimised the risk even further’.[31]
[31]T20.04 (Mr Hill).

Respondent’s submissions

The respondent submitted that in order to establish a contravention of s 32 of the WHS Act the prosecution must prove, beyond reasonable doubt, that there has been a demonstrable failure to comply with a duty, and where a system of work is already in place, and an alternative system is proposed, the prosecution must show that the existing system was not a ‘reasonably practicable’ way of addressing the relevant risk.[32] Absent that, a breach cannot be established.[33]
[32]Respondent’s written submissions dated 4 August 2021, [4]–[5] citing R v Powercor (Australia) Ltd [2005] VSCA 163, [3] (Winneke P), [4] (Chernov JA), [101]–[104] (Cummins AJA).
[33]Respondent’s written submissions dated 4 August 2021, [5].

The respondent submitted that the way in which the appellant framed its case at trial necessarily invited consideration of the respondent’s extant system and the magistrate was therefore correct in giving consideration to that system.[34]
[34]Respondent’s written submissions dated 4 August 2021, [8].

The respondent also noted that s 18 of the WHS Act requires a court to take into account and weigh up all relevant matters including the availability and suitability of ‘ways’ to eliminate and minimise the risk,[35] and therefore invited a comparative analysis. It submitted that it is not sufficient simply to show that there was some other ‘reasonably practicable’ measure that could be taken, devoid of any consideration of the extant system as the concept of ‘reasonably practicable’ does not require a duty holder to take every possible step that could be taken, and bare demonstration that a step might have had some effect on safety does not, without more, demonstrate a breach.[36]
[35]Respondent’s written submissions dated 4 August 2021, [9].
[36]Respondent’s written submissions dated 4 August 2021, [10] citing Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92, [15], [33], [38] (French CJ, Gummow, Hayne and Crennan JJ); Safe Work (NSW) v Tamex Transport Services P/L t/as Tamex [2016] NSWDC 295, [26]; Orr v Cobar Management Pty Ltd [2019] NSWDC 796, [189]; Safe Work NSW v BOC Limited [2020] NSWDC 156, [66].

In oral submissions, the respondent contended that the words ‘to the greatest extent’ should not be read into s 18 of the WHS Act, as asserted by the appellant. It emphasised that the relevant duty is one to take all reasonable steps and not to take all available steps.

The respondent submitted that, as a matter of logic, where a system of work is already in place and an alternative is proposed, there must be consideration of what is in place and whether it is effective or not. If the extant system is a reasonably practicable way of addressing the risk, then it follows that no breach can be shown.

The respondent made a number of other submissions on the first ground of appeal which, in my view, relate to the issue of exposure to risk rather than breach – in essence, that the workers’ exposure to risk was due to the deliberate and unforeseeable non-compliance with the existing system, and not a deficiency in the existing system itself. These submissions seemed to amount to the contention that, even if the magistrate’s analysis of breach was incorrect, she nevertheless found that the particularised measures would not have had any effect on the risk to which the workers were ultimately exposed.

As noted earlier in these reasons, I have accepted the substance of that submission in determining not to remit the matter for retrial.

Consideration

What the appellant was required to establish in order to prove charge 1 derives from both the elements of the offence and the particulars of the charge. Each requires careful consideration.

The elements of an offence under s 32 of the WHS Act are:

(a) the existence of a health and safety duty (‘duty element’);

(b) failure to comply with that duty (‘breach element’); and

(c) exposure of an individual to the risk of death or serious injury or illness resulting from the failure to comply with the duty (‘exposure element’).

The required particulars for the purposes of establishing these elements are:

(a) the particular health and safety duty;

(b) the particular acts or omissions which are said to demonstrate a failure to comply with the health and safety duty; and

(c) the particular risk to which an individual has been exposed as a result of the failure to comply with the health and safety duty.

Paragraph (vi) of charge 1 articulates the relevant health and safety duty as follows:

[A] health and safety duty pursuant to section 19(1)(a) and section 19(3)(c) of the [WHS] Act to provide and maintain a safe system of work to ensure, so far as was reasonably practicable, the health and safety of workers engaged, or caused to be engaged by the [respondent] while the workers were at work in the business or undertaking.

Paragraph (viii) of charge 1 articulates the relevant risk as follows:

[D]eath or serious injury from electric shock as a result of coming into close proximity with live overhead power lines …

Paragraph (ix) of charge 1 sets out particulars of the asserted breach — that is, the steps which the respondent failed to take, and which failure is said to demonstrate a failure to comply with its health and safety duty. Those particulars are set out above.

The respondent did not dispute that it owed the duty specified in para (vi) of charge 1.

Therefore, in order to establish the breach element of the offence, the appellant was required to establish beyond reasonable doubt that the respondent had failed ‘to provide and maintain a safe system of work to ensure, so far as was reasonably practicable, the health and safety of workers engaged, or caused to be engaged by the [respondent] while the workers were at work in the business or undertaking’.

In this case, a significant degree of confusion appears to have been caused by the combination of the language of sub-s 19(1) and sub-s 19(3)(c) in the articulation of the relevant duty. While sub-s 19(3)(c) provides that an employer is required to provide and maintain ‘safe systems of work’, that phrase is not otherwise defined in the WHS Act and the legislation makes clear that it is not intended to limit the duty in subs-s 19(1) to ‘ensure, so far as is reasonably practicable, the health and safety’ of its workers.

Therefore, notwithstanding the reference to a ‘safe system of work’ in the articulated duty, the ultimate question remained whether the respondent had failed to ‘ensure, so far as is reasonably practicable, the health and safety’ of its workers.

The critical phrases requiring attention are ‘ensure … health and safety’ and ‘so far as is reasonably practicable’.

Section 17 of the WHS Act provides that a duty imposed on a person ‘to ensure health and safety’ requires the person to ‘eliminate’ risks to health and safety ‘so far as is reasonably practicable’, and if elimination is not reasonably practicable, to ‘minimise’ those risks ‘so far as is reasonably practicable’ (for ease of reference, I will refer to the requirement to ‘eliminate or minimise risks so far as is reasonably practicable’). ‘Reasonably practicable’, in turn, means ‘that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety’, taking into account and weighing up ‘all relevant matters’, including the various maters listed in s 18.

Accordingly, in this case, the prosecution was required to establish that the respondent had not eliminated or minimised risks to health and safety ‘so far as was reasonably practicable’ by reference to the various relevant matters listed in s 18.

That is the task prescribed by the legislation and, accordingly, that is the language which should be used when reaching a final conclusion on breach.

The magistrate did not frame her final conclusion in that language. The question raised by the first ground of appeal is whether the magistrate’s substitution of that language with materially different, albeit related, language constitutes an erroneous departure from the required legislative task.

The question required by the legislation – whether the respondent failed to eliminate or minimise risks to health and safety ‘so far as was reasonably practicable’ – is syntactically (if not substantively) different to:

(a) the question of whether a particularised step or measure that the defendant failed to take was ‘reasonably practicable’ (which the appellant asserts is the question ‘required by sections 18 and 19 of the WHS Act’);[37] and

(b) the question of whether the defendant’s existing system of work was a ‘reasonably practicable’ way of addressing the relevant risk (which the appellant asserts the magistrate was incorrect in using as the relevant test).

[37]Notice of appeal dated 16 December 2020, 2.

It is convenient to begin with some observations in relation to the first question.

In my view, there are problems with describing the first question as ‘required’ by the legislation. The legislation does not expressly require attaching the words ‘reasonably practicable’ to any existing or posited step or measure. Rather, the words ‘so far as is reasonably practicable’ relate to what the defendant has or has not done to achieve the prescribed objective of eliminating or minimising risks to health and safety.

There is a subtle, but important, distinction between these two formulations. Describing a particularised measure as ‘reasonably practicable’, in isolation, risks reducing the task to an abstract characterisation of that measure without regard to the context in which it is taken or, critically, the person who is taking it. On the other hand, asking whether a person has achieved an objective ‘so far as is reasonably practicable’ naturally invites consideration of that person’s particular circumstances and the totality of his or her conduct.

As noted by a plurality of the High Court in Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92 (‘Baiada Poultry’) in respect of the similarly worded sub-s 21(1) of the Occupational Health and Safety Act 2004 (Vic):

All elements of the statutory description of the duty were important. The words “so far as is reasonably practicable” direct attention to the extent of the duty. The words “reasonably practicable” indicate that the duty does not require an employer to take every possible step that could be taken. The steps that are to be taken in performance of the duty are those that are reasonably practicable for the employer to take to achieve the identified end of providing and maintaining a safe working environment [being the relevant duty in that case]. Bare demonstration that a step could have been taken and that, if taken, it might have had some effect on the safety of a working environment does not, without more, demonstrate that an employer has broken the duty imposed by s 21(1). The question remains whether the employer has so far as is reasonably practicable provided and maintained a safe working environment.[38]

[38]Baiada Poultry, [15] (French CJ, Gummow , Hayne and Crennan JJ).

Two relevant points may be drawn from this passage:

(a) consistently with my comments above, the ultimate question for determination is the specific question posed by the legislation – in the present case, whether the respondent eliminated or minimised risks to health and safety ‘so far as was reasonably practicable’; and

(b) when consideration is given to the steps particularised by the prosecution, the relevant question to ask is whether they were reasonably practicable for the defendant to take to achieve the identified end, and not whether they were ‘reasonably practicable’ in some abstract sense. This necessarily extends attention from the steps themselves to the person who is taking those steps and the purpose for taking those steps. Relevantly, the statement from Poletti on which the appellant relies also includes the words ‘for Poletti [the defendant] to take’ in conjunction with the words ‘reasonably practicable’.

Considering the particularised steps within the relevant context is particularly important in this case given the way charge 1 was framed. While, as noted above, the inclusion of sub-s 19(3)(c) in the pleaded duty did not change the ultimate question to be answered, it necessarily invited consideration of the respondent’s existing system of work. Therefore, it was entirely appropriate for the magistrate to give detailed consideration to the existing system, particularly given the extensive evidence that was led in relation to that system. This is reaffirmed by paragraph (d) of the definition of ‘reasonably practicable’ in s 18 of the WHS Act, which provides that an assessment of that concept requires consideration of ‘the availability and suitability of ways to eliminate or minimise the risk’ (emphasis added).

I turn now to the second question, which the appellant asserts is erroneous – that is, whether the respondent’s existing system was a ‘reasonably practicable’ way of addressing the relevant risk.

As noted above, that question is materially different to the question prescribed by the legislation (of whether the respondent failed to eliminate or minimise risks to health and safety ‘so far as was reasonably practicable’).

The only case I was directed to that uses the impugned language is R v Powercor (Australia) Ltd [2005] VSCA 163 (‘Powercor’). That case concerned s 22 of the Occupational Health and Safety Act 1985 (Vic), which provided that:

Every employer and every self-employed person shall ensure so far as is practicable that persons (other than the employees of the employer or self-employed person) are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer or self-employed persons.

The central issue in that case was the supervision of workers. The relevant ground of appeal concerned whether the prosecution’s case related only to the existence of supervision, or whether the sufficiency of the supervision was the issue in dispute. The Court of Appeal held that the trial judge was correct in identifying the sufficiency of the supervision as the issue in dispute. It was in this context that the Court of Appeal queried whether the ultimate question requiring resolution was not whether provision of a designated supervisor was a ‘reasonably practicable’ way of addressing the relevant risk (as the jury was directed), but whether the existing system of supervision was a ‘reasonably practicable’ way of addressing the relevant risk.

Critically, the Court of Appeal did not provide a concluded view on this point. There was no dispute between the parties about the appropriateness of directing the jury that the charge required establishing that the provision of a designated supervisor was a ‘reasonably practicable’ way of addressing the relevant risk. According to Winneke P, ‘this Court can only assume that, in the context in which the issues arose at the trial, counsel had concluded that those issues would be adequately addressed by the written directions provided to the jury.’[39]
[39]R v Powercor (Australia) Ltd [2005] VSCA 163, [3].

Accordingly, Powercor does not stand for the general proposition (as submitted by the respondent and accepted by the magistrate at paragraph 96 of her reasons) that in any case where a system of work is in place, the prosecution is required to establish that it was not a ‘reasonably practicable’ way of addressing the relevant risk. Rather, it lends support to the much more limited proposition that, depending on the circumstances of the case and the way a particular charge is framed, it might be a legitimate question to ask in assessing whether the pleaded duty has been breached.

Therefore, taking Powercor at its highest, the particular facts of a case may permit a tribunal to frame the prosecution’s task as establishing that an existing system was not a ‘reasonably practicable’ way of addressing the relevant risk. However, this must not distract from the fundamental question of whether there has been a failure to eliminate or minimise risks to health and safety ‘so far as was reasonably practicable’.

It is critical not to lose sight of the phrase ‘so far as’ in front of the words ‘reasonably practicable’. Just as asking whether a particularised measure was ‘reasonably practicable’ in isolation risks ignoring relevant context (such as an existing system of work), asking whether an existing system was ‘reasonably practicable’ in isolation risks ignoring the requirement to test the boundaries of the relevant duty by reference to the particularised measures in the charge. The relevant question must be whether the existing system eliminated or minimised risks to health and safety so far as was reasonably practicable.

In my view, the Magistrate’s statement of principle resulted in a comparison of the existing and posited systems of work at too high a level of abstraction. The statutory task is not to compare two systems of work and determine whether they are broadly equivalent. It is to test the extent of a defendant’s duty to ensure health and safety by reference to what the defendant could have done, but did not do. That task involves questions of degree which are difficult to answer when two systems are compared at a ‘global’ level.

The particularised measures require careful and specific attention. As identified by Walton J in Grasso:

The [WHS Act (NSW)] is contravened where there is a failure, on the part of a person conducting a business or undertaking, to take particularised measures to prevent an identifiable risk eventuating: Kirk v Industrial Relations Commission NSW (2010) 239 CLR 531; [2010] HCA 1 (“Kirk”) at [12] and [13] (per the plurality); Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 (“Bulga”) at [11] and [123] (per Bathurst CJ, Hidden and Davies JJ, albeit with respect to predecessor legislation). [emphasis added]

While the magistrate clearly considered the particularised measures posited by the appellant in the course of her reasons, she did not adequately explain why the defendant’s failure to adopt those measures did not constitute a failure to eliminate or minimise risks ‘so far as was reasonably practicable’. Rather, her ultimate conclusion is that ‘the existing system accorded with that particularised by the [appellant] as a reasonably practicable way of addressing the relevant risk’.[40] Critically, the features of the existing system that the magistrate identified as demonstrating that equivalence (at paragraph 165 of her reasons[41]) are not clearly related to the three measures particularised by the appellant in charge 1.
[40]Reasons, [165].
[41]Being a requirement for: ‘a. Assessment of the risks prior to the authorisation of the activity itself; b. Specific approval and authorisation, via the Operational Order, for locations; and c. Continuous safety and risk assessment’.

The first ground is therefore made out.

Ground 2

The second ground of appeal attacks the following statements by the magistrate in her reasons:

In this case Defence urge the Court to find that where an employer is found to have laid down a safe and proper practice and there is no evidence that the employer failed to use due diligence to see that the practice is observed, then a casual failure by inferior employees, even if of supervisory rank, to observe that practice on a particular occasion will not render the employer criminally liable for a failure to ensure safety [citing Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209, 215E].[42]
…
There is no evidence before the Court to establish that Defence failed to use due diligence to ensure that its’ [sic] practices and procedures were observed. Therefore, a failure by an employee, even one of supervisory rank to observe that practice on an occasion will not render the accused liable for a failure to ensure safety.[43]

[42]Reasons, [95].

[43]Reasons, [173].

From these statements, the appellant asserts that the magistrate erroneously:

... considered that the prosecution must “establish that (the Respondent) failed to use due diligence to ensure that its’ [sic] practices and procedures were observed” …[44]
[44]Notice of appeal dated 16 December 2020, 2.

Appellant’s submissions

The appellant stated in its written submissions:[45]

It is submitted that ‘due diligence’ is an element of the s.27 WHS Act offence concerning the duties of officers of a person conducting a business or undertaking (PCBU) but no part of the ss 19 and 32 offence before the magistrate. The defence submissions cited only Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209 as support for their proposition of law. It is submitted that Collins is distinguishable as dealing with now repealed NSW legislation to which the Court imported notions of ‘due diligence’ not relevant to the ss 19 and 32 offence under the WHS (Cth) Act.[46]
Further as to Ground 2 it is submitted that Her Honour’s application of a ‘due diligence’ test permitted the respondent to attribute it’s [sic] acts and omissions to Captain Wilson, Sergeant Smith and Corporal Houlihan, and to disown them, contrary to DPP v JCS Fabrications, at [47] and [51]…

[45]Appellant’s written submissions dated 4 June 2021, [42]–[43].

[46]Collins dealt with the Occupational Health and Safety Act 1983 (NSW).

The statements from DPP v JCS Fabrications Pty Ltd & The JMAL Group Pty Ltd [2019] VSCA 50 (‘JCS Fabrications’) relied on by the appellant are as follows:[47]

CICG [R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181] establishes that the relevant issue is not whether the employee’s acts and omissions are to be ‘attributed’ to the employer, but rather, whether, on the evidence of the employee’s acts and omissions, the employer has taken all reasonably practicable measures. CICG makes it clear that an employer cannot ‘disown’ the acts of the employee.
…
The employer cannot ‘disown’ the acts or omissions of an employee. In this context, issues of attribution do not arise. Mr McRae’s acts or omissions may be sufficient in themselves to establish the commission of an offence by JMAL. But the evidence of Mr McRae’s acts and omissions is not the only evidence that is relevant, or potentially relevant, and JMAL is not precluded from leading evidence seeking to establish that everything reasonably practicable was done. Of course, as this Court observed in CICG, one of the matters employers must recognise and plan for is the inevitability of human error ranging from inadvertence, inattention or haste through to foolish disregard of personal safety and deliberate non-compliance with safe systems of work.

[47]JCS Fabrications, [47], [51] (citations omitted).

The appellant also relied upon the following statements of the Court of Appeal in R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181 (‘CICG’):[48]

As this case illustrates, the formal adoption of a satisfactory safety management system will not have the beneficial effects intended unless it is accompanied by the employer’s active implementation of the system in the workplace. The employer’s duty will not be discharged simply by creating a safe system of work. The obligation requires the employer to ensure “that procedures and instructions are actively and positively complied with by employees”. Not only must employees be appropriately trained but there must be ongoing supervision and compliance audits, to ensure that the system is being applied in practice. Employee compliance with the safe system of work must be constantly monitored by the employer.
An employer should recognise that it is common experience that human error will be encountered in the workplace. Error can range from inadvertence, inattention or haste through foolish disregard of personal safety to deliberate non-compliance with the prescribed safe system of work. In R v Australian Char Pty Ltd and DPP v Amcor Packaging Pty Ltd, this Court has referred with approval to the observations of Harper, J. in Holmes v R.E. Spence & Co Pty Ltd that an employer’s responsibility for the safety of its workers will not be discharged unless the employer takes “an active imaginative and flexible approach to potential dangers in the knowledge that human frailty is an ever- present reality”.
The events of this day suggest a foolish or deliberate disregard of the company’s safety management system by three of its employees, as a consequence of the company’s failure over time to supervise and monitor its employees sufficiently in the course of the performance of their work and its over-reliance on the discretion of employees in matters of safety. The conclusion is inescapable that its employees’ non-compliance with its safe system of work was not the consequence of a sudden lapse of judgment by them during these two days. The company’s duty was to ensure that its employees worked in accordance with the safety instructions that they had been given. The company’s submission, that it could have done no more to comply with its statutory obligation to provide a safe system of work, cannot be sustained.

[48]CICG, [48]–[50].

While these cases relate to provisions of Victorian health and safety legislation, which are not identical to those in the WHS Act, the appellant also referred the Court to the Northern Territory case of Whittens Pty Ltd v Judge Fong Lim & Anor[49] which considered those cases in the context of the uniform WHS Act legislation.
[49][2021] NTSC 9, [53]–[60] (Brownhill J).

The appellant submitted that an employer must recognise and plan for the inevitability of human errors ranging from inadvertence through to deliberate non-compliance and that the relevant statutory test is to ask whether the employer has taken all practical measures to minimise risks to employees. The appellant submitted that it is to substitute a different test to ask whether the employer used ‘due diligence’ to ensure that employees complied with the system of work.

The appellant contended that Collinsv State Rail Authority of New South Wales (1986) 5 NSWLR 209 (‘Collins’) concerned materially different provisions involving an obligation to take reasonable steps rather than an obligation to take all steps that are reasonably practicable. The appellant submitted that the relevant duty in this case imposed a greater obligation, and referred to s 27(1) of the WHS Act which separately imposes a duty on an officer of a person conducting a business or undertaking to ‘exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation’. The appellant emphasised that this Court was not bound to follow decisions of the NSW District Court applying Collins in the context of the WHS Act (NSW), and as a matter of principle it should be found that a focus on due diligence distracts from the statutory question regarding whether the particularised steps were reasonably practicable.

Respondent’s submissions

The respondent noted that while the decision in Collins concerned now repealed New South Wales legislation, the test articulated in that case has been adopted and followed in more recent New South Wales authorities dealing with identical provisions to those contained in the WHS Act.[50]
[50]Respondent’s written submissions dated 4 August 2021, [12] citing Safe Work (NSW) v Tamex Transport Services P/L t/as Tamex [2016] NSWDC 295, [31]; Orr v Cobar Management Pty Ltd [2019] NSWDC 796, [195]; Safe Work NSW v H D Projects Pty Ltd [2020] NSWDC 765, [86].

In oral submissions, the respondent contended that if there is an existing system which employees are required to follow, then the Court must examine that system rather than ‘reverse engineer’ a failing in that system based on the fact there was a departure from it.[51]
[51]T87.28 (Ms McLeod).

The respondent emphasised that its case before the magistrate was not that it could disown the acts of its employees, but rather that their conduct, in disobeying the existing system, could not be reasonably predicted.

Consideration

Consideration of the second ground of appeal requires identifying why the magistrate posed the question of whether the respondent had used ‘due diligence to ensure that its practices and procedures were observed’.

The particulars of charge 1 do not specify any measures that are obviously directed at ensuring compliance by workers with the respondent’s existing system. Therefore, it could not be said that failure by the defendant to use ‘due diligence’ to ensure compliance with its existing system of work was an aspect of the breach of duty asserted by the appellant.

Rather, the magistrate’s consideration of the issue appears to derive from her consideration of the third element of the offence, being exposure of the trainees to risk on the night in question.

I use the word ‘appears’, as it is difficult to disentangle the elements of the magistrate’s reasoning which pertain to the second and third elements of the offence. Nevertheless, as noted at the start of my reasons, the overriding and emphatic finding that permeates the magistrate’s reasons is that, on the night in question, several employees of the respondent departed from the strict requirements of the respondent’s existing system of work, and it was this departure that exposed the relevant workers to risk.

Because charge 1 does not assert deficiencies in the existing system that relate to compliance, it is arguable that this finding may have been sufficient to dismiss the charge. However, the magistrate nevertheless proceeded to consider whether the identified non-compliance was itself a manifestation of an inadequate system of work. It is in this context that she raised the question of whether the respondent had failed to use ‘due diligence’ to ensure that its existing system was followed.

Therefore, contrary to the appellant’s assertion, the magistrate did not state that the prosecution was required to establish that the respondent failed to use due diligence as an ‘additional test’ in order to make out charge 1. Instead it appears that, having found that the workers were exposed to risk due to non-compliance with the existing system, the magistrate simply identified that there was no evidence to suggest that the respondent did not have in place adequate compliance measures (which might otherwise indicate that the exposure to risk was caused by a deficiency in the system). I do not consider that the magistrate was in error to do so.

I do not consider that CICG and JCS Fabrications assist the appellant. In each of those cases, the Court of Appeal recognised that an employer must not only have in place a safe system of work, they must also take positive measures to ensure that system of work is complied with. In my view, that is substantively the same principle recognised in Collins. The Court of Appeal’s statement in CICG that ‘[e]mployee compliance with the safe system of work must be constantly monitored by the employer’[52] is substantively the same as the observation in Collins that a safe and proper practice will not assist an employer if the employer fails to use ‘due diligence’ to see that it is observed.[53]
[52]CICG, [48].
[53]Collins, 215E (Street CJ) citing Lord Diplock in Tesco Supermarkets Ltd v Nattrass [1972] AC 153.

Furthermore, as noted in JCS Fabrications, while the acts or omissions or an employee may be sufficient in themselves to establish the commission of an offence, the employer ‘is not precluded from leading evidence seeking to establish that everything reasonably practicable was done’.[54] In the present case, the respondent led extensive evidence about the strict practices and procedures underpinning its existing system of work, and the employees’ awareness of those practices and procedures. As noted above, the magistrate concluded that the need for safety had ‘been so clearly repeatedly drilled into and proscribed [sic] for all concerned’.[55] This finding is in stark contrast to the Court of Appeal’s comments in CICG regarding ‘the company’s failure over time to supervise and monitor its employees sufficiently in the course of the performance of their work and its over-reliance on the discretion of employees in matters of safety’.
[54]JCS Fabrications, [51].
[55]Reasons, [147].

I would therefore dismiss ground 2 of the appeal.

Ground 3

The third ground of appeal concerns the following statement by the magistrate in her reasons:

Based on the evidence before the Court I cannot be satisfied that if the required safety brief had been filed and read to the trainees prior to the night-time exercise it would have controlled the risk.[56]
[56]Reasons, [174].

Appellant’s submissions

The appellant stated in its written submissions that:[57]

Her Honour incorrectly considered whether the additional safeguards alleged by the prosecution “would have controlled the risk” (at [174]–[175]). Her Honour also repeatedly considered whether the respondent had provided a system of work which if complied with, would have obviated the risk.[58] It is submitted that Her Honour thereby erroneously considered only whether the particularised safety measures would have eliminated the risk. Section 17 of the WHS Act makes clear that the s.19 duty requires the PCBU [person conducting a business or undertaking] to provide reasonably practicable safety measures to minimise the risk if it cannot be eliminated [emphases in original].

[57]Appellant’s written submissions dated 4 June 2021, [44].

[58]Citing Reasons, [92], [97], [146], [170], [171].

In oral submissions, the appellant clarified that the magistrate’s use of the word ‘controlled’, in isolation, did not evidence error, given that, ‘[i]n context, that means both eliminate and minimise risk’.[59] Rather, given the magistrate’s use of the word ‘obviate’ earlier in her reasons, her subsequent use of the word ‘controlled’:

… can only mean that the magistrate was asking herself whether the particularised measures would have obviated the risk, that is eliminated it, and did not ask whether those measures would have minimised the risk …[60]
[59]T39.05-06 (Mr Hill).
[60]T40.15-18 (Mr Hill).

Respondent’s submissions

The respondent rejected the appellant’s assertion that the magistrate considered only elimination, and not minimisation, of the relevant risk. In oral submissions, the respondent submitted that the magistrate’s use of the word ‘obviate’ was plainly a reference to a measure that anticipates and prevents, and not inappropriate.

Consideration

It is unfortunate that the magistrate strayed from the statutory language of ‘minimise’ or ‘eliminate’ when describing the relevant risk, adopting variously the terms ‘mitigating’,[61] ‘obviated’[62] and ‘controlled’.[63]
[61]Reasons, [96].
[62]Reasons, [92], [97], [146], [170], [171].
[63]Reasons, [159], [174].

However, I am not satisfied that these terms necessarily evidence a departure from the statutory task. Rather, it seems likely that they were used as shorthand references to the statutory scheme that the magistrate correctly identified at the start of her reasons.

When applying statutory provisions, the use of shorthand references is often unavoidable. That is especially the case where, as here, the relevant provisions include lengthy and cumbersome phrases.

The term ‘obviate’ naturally connotes the concept of removal or elimination. However, in the statutory context, it might also be used to encapsulate the concept of minimisation so far as is reasonably practicable. The term ‘control’ is less obviously associated with the notion of complete removal or elimination, and might be said to more naturally align with reduction of risk to an acceptable level.

Of course, if either of these terms is used as a shorthand reference to the concepts articulated in s 17 of the WHS Act, the author of the reasons should make that expressly clear. While that did not occur in this case, I am not satisfied that the isolated use of these terms is evidence of error.

I would therefore dismiss ground 3 of the appeal.

For completeness, I note that the magistrate’s impugned statement appears to be part of a retrospective analysis – that is, consideration of what ‘would have happened’ if a particular measure had been taken by the respondent. As noted at paragraph 35(a) of these reasons, it is only the exposure element of the offence that requires a retrospective analysis. The breach element is assessed prospectively by asking whether the defendant eliminated or minimised risks to health and safety ‘so far as reasonably practicable’ before the exposure to risk occurred.

While it is unnecessary for me to conclusively determine whether the impugned statement is, in substance, part of a breach or exposure analysis, the latter conclusion would take the statement outside scope of the appellant’s grounds of appeal, given that they do not concern that element of the offence.

Grounds 4 and 5

Grounds 4 and 5 relate to two findings of fact, and whether these were reasonably open on the evidence before the magistrate.

In my view, even if those grounds were made out, the resultant errors would not infect or undermine the magistrate’s strong factual conclusions that are relevant to the question of exposure to risk. Moreover, even if I remitted the matter for retrial on the basis of ground 1, a new body of evidence would be led, and my findings on grounds 4 and 5 would be inapplicable to that evidence.

Therefore, I do not consider it necessary to address grounds 4 and 5.

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[2022] VSC 364

24 June 2022