Chugg v Pacific Dunlop Limited; Pacific Dunlop Limited v Chugg; Dairy Farmers Co-operative Limited v Azar

[1990] HCATrans 90

..

.

• ~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M53 of 1989

B e t w e e n -

PETER RICHARD CHUGG

Appellant

and

PACIFIC DUNLOP LIMITED

Respondent

Office of the Registry

Melbourne No M52 of 1989

B e t w e e n -

PACIFIC DUNLOP LIMITED

Appellant

and

PETER RICHARD CHUGG

Chugg(2)

BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J

Respondent

Office of the Registry

Sydney No Sll6 of 1989

B e t w e e n -

DAIRY FARMERS CO-OPERATIVE LIMITED

Appellant

and

GEORGE AZAR

Respondent

C2Tl/l/HS 1 7/5/90

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 7 MAY 1990, AT 2. 17 PM

Copyright in the High Court of Australia

MR J.L. DWYER, QC, If the Court pleases, I appear with my

learned friend, MR B.M. DENNIS, for the appellant, Chugg.

Chugg is also the respondent to the second appeal.

(instructed by A.F.A. Lindeman, Solicitor to

the Department of Labour)

MR E.W. GILLARD, QC:  If it please the Court, I appear with

my learned friend, MR T.C.L. MORRIS, for Pacific

Dunlop in both appeals. (instructed by

Freehill Hollingdale and Page)

MR I.B. WARD, QC:  If Your Honours please, I appear with my

learned friend, MR J. HARRINGTON, for Dairy Farmers

Co-operative Limited, the appellant in the second

matter. (instructed by R.C. Balding & Co)

MR B.J. GROSS, QC:  May it please the Court, I appear with my

learned friend, MR P. SEMMLER, for the respondent Azar

in the second matter. (instructed by P.K. Simpson & Co)

BRENNAN J:  Is there any course of argument which is

proposed by counsel in these matters?

(Continued on page 3)

C2Tl/2/HS	2	7/5/90
Chugg(2)

MR DWYER:  If the Court please, there has been general

agreement that it would be appropriate for me to

go first in the appeal of CHUGG V PACIFIC DUNLOP

which raises the onus point; that my learned

friend, Mr Gillard, might then conveniently respond
for the respondent on that matter and then present

his arguments in the appeal by Pacific Dunlop on

the regulation 10 matter and that I ought then

respond for Chugg as respondent in that matter.

The question as to how the Court fits in the

New South Wales case which raises a point similar

to the regulation 10 point in some respects is

a matter that we have not discussed so far as I

am aware.

BRENNAN J: Yes.

MR GILLARD:	We are happy with that course, Your Honour.
BRENNAN J:	Mr Ward, have you any submissions to make as to the convenient course to follow in argument?
MR WARD:	No, we have no objection to that course being followed, Your Honour, and I think there may be a
common point after that has been dealt with.
MR GROSS:	We are in the same position, Your Honour.
BRENNAN J:	We will follow that course in that event.

(Continued on page 4)

C2T2/l/DR	7/5/90
Chugg(2)
MR DWYER:	If the Court pleases. Does the Court have copies

of the OCCUPATIONAL HEALTH AND SAFETY ACT 1985 of Victoria?

In the appeal by Chugg against Pacific Dunlop

the main issue concerns section 21 of that Act

and section 21(1) and (2) in particular.

Section 21(1) provides:

An employer shall provide and maintain so far as is practicable for employees a working

environment that is safe and without risks to

health.

And section 21(2)(a) is material:

Without in any way limiting the generality of sub-section (1), an employer contravenes that sub-section if the employer fails -

(a) to provide and maintain plant and systems

of work that are so far as is practicable

safe and without risks to health.

Now, the primary question concerns those words

"so far as is practicable". The main issue concerns

those words "so far as is practicable" in
section 21(1) and (2) and the question is how, as
a matter of implication, does the section provide
for the burden of proof in relation to that

matter.

(Continued on page 5)

C2T3/l/LW	4	7/5/90
Chugg(2)

MR DWYER (continuing):  By looking at the submissions that have

been filed with the Court for the respondent as well as

the appellant, it becomes apparent that there is some

degree of common ground as to the proper approach to

that question. But before turning to that, could I say

this by way of opening observation, and again by

reference to the respondent's submissions, could I

take the Court to paragraph 17 on page 14 of the
respondent's submissions, where it is true the
respondent is dealing with the second issue in the appeal
which is as to whether the magistrate erred in dismissing

the information.

The respondent sets out in paragraph 17 that the

prosecution has to prove two matters which are set

out in subparagraphs: (a) the:

employer did not provide and maintain a

working environment that was safe and

without risk to health to the employees; and

(b) that it was practicable to provide such a

working environment.

Now, there is disagreement between us as to who has

to prove (b), but we submit that the requirement of
subsection (1) for example, falls naturally into those
two questions. That is, if one approaches the

subsection and says, well now, on a prosecution under

this matter, what are the things to be proved, it is

submitted that they are the two elements that are there,

and the difference between us is this: we contend that

once the prosecution proves that the working environment

was not safe, and had risks to health, that it is then

for the defendant, if he wishes to do so, to carry the

burden of proof on whether it was practicable to provide

such a working environment.

(Continued on page 6)

C2T4/l/FK	5	7/5/90
Chugg(2)

MR DWYER (continuing):  I will be developing perhaps that

a little more fully, but that, I think, in a

very practical way, sets up what the problem

is that is before the Court.

DEANE J: Looking at those two things the prosecution has

to prove, that is inaccurate, is it not? I mean,

it may not be practicable to provide a completely

safe working environment, but there can still be

breach of the section if it was not provided to

the extent that is practicable, which means

17(a) and (b) is simply not right.

MR DWYER:	Well, we say if one spells out what are the
matters that are in the subsection, that there are those two matters there.

TOOHEY J: But that argument omits the words "so far as",

does it not?

MR DWYER: Well, it, no -

TOOHEY J:	The obligation is not to maintain a working
environment that is safe and without risks to health.
It is to maintain "so far as is practicable".

MR DWYER: Well, the point, with respect, does not alter

whether one has particular regard to those words

or not. That is the words "so far as"

would then simply be regarded as part of the

second question, it is submitted.

BRENNAN~J: Why does not "so far as" determine the measure of

the obligation?

MR DWYER:	Because it is an indeterminate measure that one
would then be considering~ because either something
is safe or it is not. Either something has risks
to health or it does not, and in truth the qualification
in the words "so far as is practicable" does not
relate to safety or risks to health. It relates to
"provide and maintain" so that the first question is,
every time it is submitted, was the working
environment safe and without risks to health?

(Continued on page 7)

C2T5/l/CM	6	7/5/90
Chugg(2)

BRENNAN J:  That would put a great strain, would it not, on

reading subsection (2) in conjunction with

subsection (l)?

MR DWYER:  Well, there is uncertainty as to the relationship

between subsection (2) and subsection (1). Could

I draw the Court's attention to the fact that in
some of the particular matters that are provided for
in subsection (2) the words "so far as is practicable"
appear, but in others they do not, and there are

questions, for example, in subparagraph (d) those

words do not appear and in subparagraph (e) those

words do not appear. There has been a tendency to

say that subsection (1) imposes a general duty and

that subsection (2) imposes a number of particular
duties and that there may be coincidence between the

general duty and those particular duties; that is,

if one thinks of them in terms of a diagram employing

circles the subparagraph (1) is a large circle which

might have within it smaller circles, the particular

duties that are referred to in subparagraphs (a) to (e)

of subsection (2).

That perhaps gives force to the words without in any way limiting the generality of subsection (1)

and so one is going from generality to particularity

and particular ways in which subsection (1) can be

breached, although there may be other ways in which

subsection (1) may be breached. But if one then

attends to the words in subparagraph (a) "so far as

is practicable" it is true that they appear

immediately before the words "safe and without risks
to health" whereas they do not in subparagraph (1)

appear immediately before those words, but it is

submitted that it is still the provision and

maintenance of, under (1), the working environment,

and (2), the plant and systems of work that is

qualified by the words "so far as is practicable"

and that in each case what the section requires is

that there be a safe working environment, to put it

shortly under subsection (1) and safe plant and

systems of work, to put it shortly under

subsection (2)(a), but that the question then is

was it practicable to provide and maintain the safe

plant and systems of work.

Now, it is submitted that all of that is entirely

consistent and appropriate in terms of what is set

out in the section. It is perhaps appropriate in
the light of what the Court has raised concerning

that matter to go to the approach to this very

question which was adopted by Lord Goff in the

House of Lords decision in AUSTIN-ROVER GROUP LTD V

HER MAJESTY'S INSPECTOR OF FACTORIES,

(1989) 3 WLR 520.

C2T6/l/HS	7	7/5/90
Chugg(2)

The case is there dealing with the English Health and Safety at Work Act, and with a different

provision of that Act, section 4, which is dealing

with the duties of persons in control of premises,

but the section does contain again words as to

practicability, although the English words are

"so far as is reasonably practicable".

(Continued on page 9)

C2T6/2/HS	8	7/5/90
Chugg(2)

MR DYWER (continuing): Lord Goff deals, at page 523, with

an argument that the words "safe and without

risks to health" in the section were to be

approached as had the word "dangerous" under the

guarding provision of the various FACTORIES ACT

by asking was the feature in question:

a reasonably foreseeable cause of injury -

and Lord Goff, at the foot of page 523, at letter H,

rejects that argument saying:

To me, the words "safe and without risks to health"

mean, prima facie, what they say, though no

doubt they have to be related to the use which

the relevant premises are made available.

And he then goes on to develop that in saying that whether or not the premises are safe cannot relate

to the question of whether or not defects in them

is unforeseeable.

Consistently with what His Lordship there says

it is submitted that the approach to those words

"safe and without risks to health" is to proceed on the basis that either a work place is safe or

it is not; a working environment is safe or it is

not; plant and systems of work are safe or they
are not; and it is submitted that it is for reasons

of that kind that on page 526 in the AUSTIN-ROVER

case Lord Goff says:

Subject to the limited qualification embodied

in the phrase "so far as is reasonably

practicable", it seems to me that the duty

imposed upon the defendant to ensure that the
relevant premises are safe and without risks

to health for any use for which they are made

available is prima facie absolute. In other

words, the complainant has only to prove

that the defendant has failed to ensure -

and then he refers to particular words of

qualification in brackets which are not in

section 21 -

(so far as he can reasonably do so, having

regard to the extent of his control) -

and then closing the brackets -

that the relevant premises are safe and without risks to health in the sense I have described -

C2T7/l/LW	9	7/5/90
Chugg(2)

and he then says:

the onus then passes to the defendant
to prove, if he can, that it was not reasonably

practicable for him to eliminate the

relevant risk.

Now it is true that what previously had been the common law position so far as proof of practicability

has in England been now expressly dealt with in the

English Health and Safety at Work Act and

His Lordship's words which I have just taken the

Court to:

the onus then passes to the defendant -

in the English Act are based on an express provision

but our submission is that the implied submission in

the Victorian Act, or the implied allocation of the

onus in the Victorian Act, should be the same;

that is, that it is not necessary to have an express

provision in which to allocate the onus.

The submissions set out in paragraph 2 what

we submit is the proper approach to the question,

that is, that the question should-be answered ·by determining how

section 1 of the Act makes provision as to the

incidence of the burden of proof and we rely on

HUNT's case for that, and that the case must turn

on the construction of the section to determine

the legislative intention.

(Continued on page 11)

C2T7/2/LW	10	7/5/90
Chugg

MR DWYER:  I desire to take the Court to some particular

passages in HUNT's case in support of that proposition.

At page 374, Lord Griffiths having summarized the

position as to the rule in WOOLMINGTON in a way which

has since been accepted by Your Honours

Justices Brennan, Dawson and Gaudron in DPP V

UNITED TELECASTERS - goes on:

The real difficulty in these cases lies in

determining upon whom Parliament intended to

place the burden of proof when the statute

has not expressly so provided. It presents

particularly difficult problems of construction

when what might be regarded as a matter of

defence appears in a clause creating the offence

rather than in some subsequent proviso from

which it may more readily be inferred that it
was intended to provide for a separate defence

which a defendant must set up and prove if he

wishes to avail himself of it. This difficulty

was acutely demonstrated in NIMMO V ALEXANDER

COWAN & SONS LTD -

then His Lordship sets out section 29(1) of the

FACTORIES ACT which, again, contains these words as

to practicability but in the English form:

so far as is reasonably practicable -

and could I draw the Court's attention to the fact it

contains them twice: both as to a means of access

to a work place and as to the keeping safe of the

work place itself, and then Lord Griffiths goes on:

The question before the House was whether the

burden of proving that it was not reasonably

practicable to make the working place safe
lay upon the defendant or the plaintiff in a
civil action. However, as the section also

created a summary offence the same question

would have arisen in a prosecution. In the

event, the House divided three to two on

the construction of the section, Lord Reid
and Lord Wilberforce holding that the section

required the plaintiff or prosecution to

prove that it was reasonably practicable to

make the working place safe, the majority,

Lord Guest, Lord Upjohn and Lord Pearson,

holding that if the plaintiff or prosecution
proved that the working place was not safe

it was for the defendant to excuse himself by

proving that it was not reasonably practicable

to make it safe. However, their Lordships

were in agreement that if the linguistic

construction of the statute did not clearly
indicate upon whom the burden should lie the
court should look to other considerations

to determine the intention of Parliament such

C2T8/l/DR	11	7/5/90
Chugg(2)

as the mischief at which the Act was aimed

and practical considerations affecting the

burden of proof and, in particular, the

ease or difficulty that the respective

parties would encounter in discharging the

burden.

Now, in our respectful submission, what

Lord Griffiths there says both accurately sums up the effect of what was said in NI11MO's case and

is a correct statement of the law, that is, that

that is the proper approach to be adopted in this

case because this is a case where the linguistic

construction of the statute does not clearly

indicate upon whom the burden should lie. We

say that in order to determine, as a matter of

implication, where Parliament intended the burden
to lie, one should look at the factors of the kind

to which Lord Griffiths refers: the mischief at

which the Act was aimed; practical considerations

affecting the burden of proof.

(Continued on page 13)

C2T8/2/DR	12	7/5/90
Chugg(2)

MR DWYER (continuing): There are similar observations

by Lord Ackner at pages 379 and 380 as to the

way in which the question arises:

It is, of course, axiomatic that a

statute may impose upon the accused the

burden of proof of a particular defence

to a statutory offence and may do so

either expressly or by necessary implication.

And he then goes on to develop that proposition and

then, further down, on page 380 at line F:

Where Parliament has made no express

provision as to the burden of proof, the

court must construe the enactment under

which the charge is laid. But the court

is not confined to the language of the

statute. It must look at the substance and

the effect of the enactment.

And then His Lordship goes on to develop that, and then he goes on, on page 382, to refer to NI:t1MO's

case, and says, at line G:

The Court of Appeal, in construing the relevant

statutory provisions in order to ascertain

where the burden of proof lay, rightly

concluded, relying on the decision of your

Lordships' House in NI:t1MO V ALEXANDER COWAN .....

that they were not restricted to the form

or wording of the statutory provisions but were entitled to have regard to matters of policy.

His Lordship then goes on to say more fully what was

said in NI:t1MO's case, and, as I have said in our submission,

that is the appropriate way to proceed.	Now, if one goes
to the detail of what appears in the respondent's
submissions as to the approach,	there is a fair

degree of agreement as to that. If I could take the

Court to paragraph 8 of those submissions - or perhaps

in paragraph 5, there is set out matters as to approach

that we would not quarrel with, except that we do

quarrel with, in paragraph 6, the assertion that

the words in this case are clear and unambiguous, but

if I could take the Court to paragraph 8, we agree with

the respondent as to what is set out in paragraphs

(a), (b) and (c). The real point of disagreement as

to approach between us and the respondent is as to
whether, in looking for the implied intention of

Parliament as to the question of the onus, one is restricted to indicia in the Act.

C2T9/1/FK	13	7/5/90
Chugg(2)

The respondent says, in paragraph S(g) on

page 4:

There are no indicia in the Act which point

to an implied reversal of the burden of

proof in s.21(1).

And then the respondent says, when summing up the approach which it says should be adopted in paragraph lO(d):

if implied -

and he is talking about the allocation of the

burden of proof -

clear and unequivocal indicia in the Act

leading to the conclusion that it was the

will of parliament to reverse the onus.

Now, our contention is that the Court is not

confined to indicia in the Act but that, in accordance

with the approach to which I have just taken the

Court, based on what was said in HUNT's
case, the Court can go beyond what is contained in
the Act and can, and should, consider the purpose of

the legislation, the objects of the legislation and

which allocation of the burden would best promote

or achieve those objects.

(Continued on page 15)

C2T9/2/FK	14	7/5/90
Chugg(2)

BRENNAN J:  How does one do that without construing the Act

and discovering the purpose from its construction?

MR DWYER:	I am not wanting to say for a moment that one
should not construe the Act. This is a question
of how one should construe the Act. If one looks at the Act and looks at the words of section 21, they are completely silent as to how the burden of proof should be allocated, and so
it is a question of what is to be implied as a
matter of construction into section 21 as to how the burden of proof is to be allocated and when one comes to consider that question, the submission is, one is not confined to indicia in
the Act,  one can go beyond it to matters of a
policy;  h~w matters would work in practice, one
way of the other way, depending on how the burden
was allocated.  I should say that I am not wanting
for a moment to urge that indicia in the Act should be disregarded,but it is a question of whether it is only to indicia in the Act that the Court can
have regard.  So far as this Act of Parliament is
concerned, we are dealing with an Act which sets
out in section 6 what the objects of the Act are. This is not a piece of legislation in which one
has to speculate as to what the objects of the Act
are.  The objects of the Act are, as set out in
section 6:

to secure the health, safety and welfare

of persons at work;

to protect persons at work against risks

to health or safety;

to assist in securing safe and healthy

work environments;

to eliminate, at the source, risks to the

health, safety and welfare of persons at work;

and -

to provide for the involvement of employees and

employers and associations representing
employees and employers in the formulation

and implementation of health and safety

standards.

So one certainly should have regard to the indicia

in the Act contained in the objects provision in

section 6, but if one then takes the next step, what

construction of section 21 will best promote that

purpose or object, which is exactly the approach

that was adopted by the House of Lords in Nif.v!MO's case,
then one will be, in our submission, approaching the

question in the correct way and our submissions have

C2Tl0/l/CM	15	7/5/90
Chugg(2)

indeed been prepared on that basis. What the submissions do is this: after setting up the

question in paragraph 2, we then set out the

settled approach to questions of this kind that

has been adopted in England and in Australia with

regard to similar legislation and we provide

instances of that legislation and a list of the

authorities in which that approach has been

developed. If it is of assistance to the Court I

should say that the examples that are referred to

at the top of page 3 are to be found in the cases

which are set out lower down on·page 3 of the

submission. The FACTORIES ACT 1937, section 26 is

considered in McCARTHY V COLDAIR LTD. and in

CALLAGHAN V FRED KIDD & SON. The FACTORIES SHOPS

& INDUSTRIES ACT (1962) New South Wales is considered in

BOURJ..1E' s case and in SECO and in KINGSHOTT' s case.

(Continued on page 17)

C2Tl0/2/CM	16	7/5/90
Chugg(2)

MR DWYER (continuing):  The Construction (Working Places)

Regulations 1966, regulation 6, was considered in

BOWES V SEDGEFIELD DISTRICT COUNCIL. The MINES

INSPECTION ACT 1901-1945 was considered in

DUFF V LAKE GEORGE MINES. The Coal Mines Regulation

Act was considered in BUTLER V FIFE COAL CO LTD and the Building (Safety Health and Welfare)

Regulations were considered in TROTT V W.E. SMITH

and SHEPPEY V MATTHEW T. SHAW. The INDUSTRIAL SAFETY

HEALTH AND WELFARE ACT 1981 was considered by the

court below in this case, by way of comparison.

Now, having referred to that approach which is

set out on pages 3 and 4, and then having referred

to BOURNE's case in a little more detail at the foot
of page 4 and at the top of page 5, the submission

then refers to KINGSHOTT and the earlier New South

Wales cases which were referred to in KINGSHOTT. Thus,

what is demonstrated on those pages is that the approach
which was adopted by the House of Lords in NIMMO V

ALEXANDER COWAN, which has been followed since, a
number of times, in England, and the approach which

was adopted by the majority in KINGSHOTT, were all

based on this well-settled approach to legislation

of this kind.

Now, the submissions then proceed to an outline

of the facts which endeavours to set out the
circumstances involved in the happening of the
accident in this case and they set out the history of
the proceedings and then turn, on page 13, to the
construction of section 21 and begin by setting out

in substance what I have said to the Court, which is

our submission as to the proper way to approach

section 21. Reference is made - and again, this

is now a matter of common ground - to the operation

of section 35(a) of the INTERPRETATION OF LEGISLATION ACT

1984, and so trom those considerations we turn to the

matters of policy that should be considered and that

is dealt with under two headings; The Purpose or

Object of the Legislation appears at pages 15 to 19

and the Practical Consequences appears at pages 20

to 27. There are matters of overlap between the two

considerations.

They are not discrete compartments but it has been endeavoured to deal with the matter by reference

to those two things. On page 15, from the objects

provision in the Act, it is submitted that the Act

seeks to achieve the social purpose of promoting the

safety of workers employed in factories and other

work places and to reduce the heavy toll of

industrial accidents, and that is a social purpose

which has received repeated reference in this Court

as to its importance and it is submitted that the decisions of
this Court which are set out on page 15 demonstrate a recognition
over and over again by this Court of the high degree of
importance that is to be attached to this social purpose and

each of those decisions does so.

C2Tll /2 /HS	7/5/90
Chugg(2)

BRENNAN J: These are negligence cases for the most part,

are they not?

i:1R DWYER:  They are a variety of cases. A number of them are

negligence cases but WAUGH V KIPPEN was a case

concerned with the operation of workers

compensation legislation. I am sorry,

WAUGH V KIPPEN was concerned with breach of statutory

duty as well as negligence and a particular

provision of the Queensland FACTORIES AND SHOPS ACT;

BANKSTOWN FOUNDRY PTY LTD V BRAISTINA was a

negligence case; McLEAN V TEDMAN was also a

negligence case; DA COSTA was likewise,as was

SMITH V BROKEN HILL PTY CO. LTD and O'CONNOR V

COMMISSIONER FOR GOVERNMENT TRANSPORT.

RICE AND HENLEY, which is the next case referred

to on the page, deals with the meaning of

scaffolding regulations and is thus concerned

with a breach of statutory duty. BUTLER V FIFE COAL

which is referred to on page 16 was also concerned
with breach of statutory duty.

The approach set out in the passage quoted

from the judgment of Mr Justice Isaacs in

RICE V HENLEY is consistent with the approach that

we say is to be followed. BUTLER V FIFE COAL CO.

contains, again, an observation which is set out

in the submission to a similar effect. It is

desired to refer to HARRISON's case. HARRISON V

NATIONAL COAL BOARD, (1951) AC 639, was, again,

a case of statutory duty and the particular passage

to which we desire to refer is at page 650 in the

judgment of Lord Porter, half-way down page 650:

Before, however, one analyses the relevant

wording it is necessary to consider the

proper approach to the matter. It was suggested

on behalf of the respondents that the COAL MI~TES

ACT,1911, is a measure imposing criminal

liability and therefore should be interpreted

as throwing no greater burden on the employer	than its words compel. It has, however, to be
remembered that this Act is also a remedial
measure passed for the protection of
the workman and must, therefore, be read so as
to effect its object so far as the wording
fairly and reasonably permits.

This matter of policy was adopted by President Kirby
in KINGSHOTT's case and by the members of

the majority of the House of Lords in NIMMO V

ALEXANDER COWAN and it is, I think, appropriate

if I take the Court to those matters at this stage.

C2T12/l/LW	18	7/5/90
Chugg(2)

First of all, so far as NIMMO V ALEXANDER

COWAN is concerned, this is the key English
authority as far as this appeal is concerned.

That case concerned section 29(1) of the

FACTORIES ACT.

(Continued on page 20)

C2Tl2/2/LW	19	7/5/90
Chugg(2)

MR DWYER (continuing):  The appellant was claiming breach

of the obligation imposed in section 29(1) to

provide a safe place of work. He said that he

was required to work on bales which provided an

insecure foothold and so there had been a breach
of the section. In his pleading, the worker

did not aver that it was reasonably practicable

to make the place of work safe.	He simply pleaded
that the:

place of work was not kept safe, as required

by -

the section, and the question in NI11MO V ALEXANDER

COWAN was whether a pleading in that form was good

in law as it said nothing about the question of

practicability. The majority held that as the

onus of proving that it was not reasonably
practicable to keep the work place safe lay on

the employer, the pleading was good and the

minority disagreed. The majority were Lord Guest,

Lord Upjohn and Lord Pearson; the minority were

Lord Reid and Lord Wilberforce.

If I could perhaps take the Court to the matters

on which Lord Guest, first of all, proceeded.

Lord Guest was the first judgment of the majority and his judgment begins at page 118 of the report.

He first, after setting out the section and the

problem, refers on page 119 to the English cases

which had consistently said, under similar sections,

that the onus as to practicability was on the

employer and that proposition appears at line D

and His Lordship sets out the cases for the rest

of page 119 and the top of page 120. He notes, at the foot of page 120, that Scottish cases had gone

either way. He says, on page 121, that: ·

The question is one of the proper construction of section 29(1) -

and that it is not easy to answer the question.

says that the onus provision, whether it is a He

criminal offence or civil liability "must go hand

in hand". He refers to section 16(d) of the

Summary Jurisdiction (Scotland) Act, 1954 - it is

still on page 121. I should draw the Court's

attention that that provision does not go as far

as section 168 of the :MAGISTRATE'S ~U11MARY

PROCEEDINGmACT in Victoria to which I will be

taking the Court in more detail later, and he

says, immediately after referring to that section:

If the expression "so far as is reasonably

practicable" can be treated as a "qualification",

in terms of section 16(d), then no difficulty

arises -

C2Tl3/l/DR	20	7/5/90
Chugg(2)

and, perhaps, so that can be entirely understood

I should go back to section 16(d).That says, as

to exemptions:

"any exception, exemption, proviso, excuse,
or qualification, whether it does or does
not accompany in the same section the
description of the offence in the statute or

order creating the offence, may be proved

by the accused, but need not be specified

or negatived in the complaint, and no proof
in relation to such exception, exemption,
proviso, excuse, or qualification shall be

required on behalf of the prosecution."

His Lordship is saying that if the words

"so far as is reasonably practicable" can be

treated as a qualification within that provision

no difficulty arises.

(Continued on page 21)

C2Tl3/2/DR	21	7/5/90
Chugg(2)

MR DWYER (continuing):  He does not develop argument in

relation to that matter, saying that he has had

the advantage of reading the speech of Lord Pearson

on the construction of section 16(d) and that he

agrees with his conclusions. So, he agrees that

the words "so far as is reasonably practicable"

can be treated as a qualification in terms of

that section. And he then considers the contrary

view which has been adopted in the court below:

It is said that the words "so far as is

reasonably practicable" are an integral

part of the offence, that they qualify

the verbs "made safe" and "kept safe" or are,
as Lord Migdale graphically puts it,
"woven into the verb." But these considerations

seem to me to pay little or no regard to the

purpose of the section. The object of the

section was to provide for a safe working
place by imposing criminal and civil

liability on the occupier in the event of

breach. There is doubt as to the construction

of this section. The question appears to me to

depend upon which construction will best

achieve the result to be attained, namely, to

make and keep the working place safe.

And our contention is that everything that His Lordship

there says can be applied to section 21(1) and 21(2)(a).

His Lordship goes on:

On the one hand, is this result likely to be achieved by requiring the pursuer to condescend

and specify the practicable measures whereby

the place could be made and kept safe, or by

requiring the defenders to specify and

establish that it was not reasonably

practicable to do this?

There he is setting up the two alternatives and in

dealing with them he says: 

In this connection like Scott L.J. in

CALLAGHAN V FRED KIDD & SON (ENGINEERS) LTD.

I attach some importance to the consideration

that the means of achieving the end were more
likely to be within the knowledge of the

defenders than the pursuer.

And he then develops that by reference to disadvantaged

pursuers and even the widow of a deceased workman but,

as we will be explaining later in the submissions,

in our submission, the consideration of the means of
achieving the end as to practicability are more
likely to be within the knowledge of an accused under

section 21 than of the prosecution under section 21.

C2Tl4/l/FK	22	7/5/90
Chugg(2)

And, after dealing with the difficulties which a

litigant may face, His Lordship goes on:

To treat the onus as being on the pursuer seems to equiperate the duty under the

statute to the duty under common law,

namely, to take such steps as are reasonably

practicable to keep the working place safe.

I cannot think that the section was intended to play such a limited obligation on

employers.

And he then goes on to a separate matter:

It is said by the respondents that to

impose the onus on them would mean that

they would have to prove a negative.

This is not so in my view. In most cases

the question would be whether the provision

of safety measures was reasonable, having

regard to the expense involved. This would

involve balancing the expense of the

precautions suggested against the risks

involved. That would be peculiarly within

the employer's province (see MARSHALL V GOTHAM

CO LTD).

So, on those considerations, Lord Guest arrives at

the view that - and having regard - it is the

last matter on page 123 - to the legislative history,

he says that Parliament has left the onus on the

employer.

Lord Upjohn is the next judgment, and he is also

part of the majority. His Lordship, after setting out

the section and noting the importance of the matter,

he then, on page 124, deals with what was said in

the court below and says, at line E:

(Continued on page 24)

C2T14/2/FK	23	7/5/90
Chugg(2)

MR DWYER (continuing):

As a matter sole of construction of

section 29 taken by itself there can be no
doubt that there is great force in the views
expressed by the judge of the First Division,

but I have reached the conclusion that this

is too narrow a view to take of its true

construction.

And he then refers to what Lord Reid had said to

the various ways in which sections of legislation

of this kind are drafted and says:

No doubt it would have been perfectly easy to

have drawn the section so as to make it clear

that the onus was upon the defender to show

that it was not reasonably practicable to

make the working place safe.

And that is a consideration that applies here -

But this Act and its several predecessors

are notoriously badly drafted, and, in my
opinion, one must approach its true construction

bearing in mind the object of the Act itself.

And he then refers to Maxwell for authority for

doing that and on page 125:

My Lords, it is not in doubt that the whole

object of the FACTORIES ACT is to reinforce the

connnon law obligation of the employer to take

care for the safety of his workmen.

And he then refers to what was said in CALLAGHAN V

FRED KIDD & SON and by Lord Justice Pearson in

BRAHAM VJ. LYONS & CO. LTD. Then on page 125 he

turns again to the position of an injured workman

or his widow and compares that with the position
of the employer.	But what he says about the

employer is not limited to that comparison. That

is,what he says about the employer applies equally

under the Victorian Act when he says, again, at

line G:

it is the duty of the employer to make the

place safe so far as is reasonably practicable.

It is his duty with his experts to consider

the state of the place of work in all its

circumstances and to take whatever steps he

can, so far as reasonably practicable, to

make it safe.

C2Tl5/l/CM	24	7/5/90
Chugg(2)

That applies, in our submission, a fortiori,

under the Victorian Act, because of one of the

purpose provisions in particular and that is the

particular purpose (d) in subsection (6) when the Act says that one of its objects is: '

to eliminate, at the source, risks to the

health, safety and welfare of persons
at work;

That object emphasizes the fact that the employer has imposed on him the duty with his experts to consider the work place and to take what steps

he can, so far as reasonably practicable, to make

it safe and it thus follows under the Victorian Act

as it did under the English one, as Lord Upjohn

says:

He must know and be able to give the reasons why he considered it was impracticable for

him to make the -

work -

place safe. If he cannot explain that, it can

only be because he failed to give it proper

consideration, in breach of his bounden duty to

the safety of his workmen.

And then there is a re·ference again by Hls Lordship

concerning that case, which was legislation in	to }'f...ARSHALL V GOTH&'1 CO. LTD. and he says,
different form:

Although section 29 is in different form,

I think the same reasoning applies. I think

that the section requires the occupier to

make it 100 per cent safe (judged of course

by a reasonable standard of care) if that is

reasonably practicable and, if it is not, to

make it as safe so far as is reasonably practicable

to a lower percentage. It would, indeed, impose

a very heavy burden upon the workman if he

and his experts had to set out on such an

investigation.

DEANE J :	But all this is probably very convincing wri.en yGU are looking
at questions of faim~s in an actiOJ;l between a worl<man · and his employer, but when you. are looking at what is purely a crimi...11.al statute, what is the r¢levance of talk:L..,,_g about the purpose of the Act, because tl-iat purpose
will be achieved;  the Act makes clear that it is the
obligation to do this to the e.xte..rit that is reasonably practicable and it is not going to really have nll.ICh effect
on an employer that h~_can say, "Oh, if I am guilty of an offence, an indictable offa1.ee, they will not be
able to catch me, unless they can prove what was practicable, as distinct fromill:Y being able to prove". I mean, that is
really rather unreal - - -

C'2Tl5/2/CM	25	MR DWYER, QC 7/5/90
Chugg(2)

MR DWYER:  Our submission is that a prosecutor is in a

position of real disadvantage compared with an

employer on the question of practicability.

DEANE J: That might be so but when one comes to a criminal

statute dealing only with punishment, questions

of onus of proof do not loom large, one would have

thought, in terms of the effectiveness of the

statute to regulate the conduct and to obtain
the standards which it seeks by imposing the

sanction of indictable offences.

MR DWYER: It is acknowledged at once, Your Honour, that the

effectiveness of the Act is not confined to cases

in which an onus question will arise. Of course

the Act makes it plain in all sorts of ways to

employers and occupiers that they are to do what

is necessary to make work places safe but that

fact still leaves the question of onus of proof

to be approached. The problem is still there.

As a matter of the construction of section 21

where did Parliament intend to place the burden

of proof as to practicability and, in our submission,
in determining that question, which is a very real
question and an important question so far as

prosecutors are concerned, then it is proper to

have regard to the objects and purpose of the

legislation and with regard to that question

how those objects will best be promoted.

DEANE J:	I do not want to delay you but what I was trying to convey to you is that when one reads these
judgments their strength is that it would be
utterly unfair to an employee to require him to
prove what could have practicably been done to
overcome an unsafe situation.  The arguments do
not seem to me to say much about where, in relation to a section that has nothing to do with
compensation, the onus of proof of criminal conduct should lie because regardless of where the
onus lies the Act makes the conduct which it seeks
to prescribe an indictable offence coming to this case.
MR DWYER:	Yes, it does, but Their Lordships in NIMM:O's case

were in particular directing their attention to
the position of a worker or his widow but what
they say about the particular duties and

responsibilities of an employer applies equally,

we say, under this legislation, and what

Their Lordships say is not restricted to the position

of widows and workers. What Their Lordships say

can be applied very directly to comparing the

position of a prosecutor and an employer.

C2Tl6/l/LW	26	7/5/90
Chugg(2)

DEANE J:	I mean, once one cuts out the compensation element it could equally be said that an Act which was
intended to discourage murder would not achieve its
purpose if it left the proof of mens rea on the prosecution because the accused is always going to
be the most likely person to know what was in his mind.
MR DWYER:	Yes, that is so, Your Honour.  But could I say this:

one cannot leave questions of compensation out of

it altogether. It is true that the Act provides
that a breach of section 21 will not affect civil
liability. The scheme that is adopted under this

legislation is that it is breaches of the

regulations that are to be relied upon if you want

to bring a claim for breach of statutory duty but

that merely shifts the problem because exactly the

same problem arises under the regulations.

(Continued on page 28)

C2T16/2/LW	27	7/5/90
Chugg(2)

DEANE J:	But the answer might be different.
MR DWYER:	Well, then one would have the situation that the

words "so far as is practicable" in the regulations

are said to have one meaning and the words "so far

as is practicable" in the Act under which those

regulations are made has got a different meaning.

DEANE J:  No. It may be that in the context of a er iminal

prosecution there is one onus and in the context of

a civil dispute there is another, or a different one.

MR DWYER:	But that onus would have been allocated with regard to the identical words and with regard to the identical
subject-matter, that is the question of practicability
and it is submitted that one starting point, at any
rate, ought  be that the same words in the Act and
the regulation ought have the same meaning and
operation and we say that there is no particular
problem so far as an accused person is concerned
in placing the onus as to practicability on that person because it is in fact dealing with a
subject-matter that is peculiarly within the knowledge
of that person.
DEANE J:	I follow that.

MR DWYER: It is true, of course, what Your Honour says, that

intention and state of mind must be matters

particularly within the knowledge of a person, but

the courts have, on many occasions, said as to other

matters that the fact tha~ something is peculiarly

within the knowledge of a person is a matter properly
to be taken into account in deciding how to allocate

the onus of proof in relation to that matter. There

is no "all or nothing" rule about it, one can

point to a number of instances where the courts have

adopted that approach for that reason in criminal

matters. The fact that here we are dealing with an

indictable offence should be seen primarily as a

sign of the determination of the Parliament to do

everything it could to ensure that work places are

made safe, and the fact that it is an indictable

offence - - -

DAWSON J:	It is an indictable offence, is it, Mr Dwyer?
MR DWYER:	Yes, it is.
DAWSON J:	I see section 47(3), but then section 48 seems to

contemplate the type of proceedings which is not

indictable.

MR DWYER:  Yes. Perhaps one has to take into account the

operation of section 69 of the MAGISTRATES COURT ACT.

C2Tl7/1/HS	28	7/5/90
Chugg(2)

Under that section offences under the OCCUPATIONAL

HEALTH AND SAFETY ACT are one of the matters that

a magistrates court can hear and determine. What

happens is that certain limitations are then imported

into the prosecution.	The 12 month rule is
specifically dealt with.	There is a limitation

on the penalty that can be imposed by a magistrates

court, which is a lesser penalty than the penalty

that is set out in the Act, but the Act does provide

for an indictable offence.

DAWSON J:  Has there ever been a jury trial of an offence under

this Act?

MR DWYER:	Yes, there has. There was a matter that went before the county court arising out of an explosion at
Sims Metal in which there was a plea of guilty. The matter went before Judge ..... Smith.
There are other matters of committal in which
defendants have been committed to the county court for trial, but they have not yet come for trial. I was taking the Court to various matters that were
dealt with in NIMMO's case.

(Continued on page 30)

C2T17/2/HS	29	7/5/90
Chugg(2)

MR DWYER (continuing):  The third member of the majority

was Lord Pearson who referred, on page 132, to

this very subject-matter of the knowledge of

the employer. At line D:

The defenders not only have the means

of knowledge as to the lack of safety

in the working place and as to the steps

that would be practicable for making it

safer, but they also have the powers

and the duty of taking such steps.

Thorematters apply equally, it is submitted, to

the Victorian Act. Lord Pearson refers to the

line of authority in England on that page and

then says, on page 133:

that the parties' respective means of

knowlege and spheres of responsibility .....

are important factors to be taken into
account together with the form and content

of the relevant statutory provisions.

He considers, at some length, OLIVER's case

which is a criminal case in which:

the onus of proving that the appellant had

a licence was -

said to lie -

on the appellant -

and His Lordship sets out a passage from the

judgment of the Court of Criminal Appeal from

Viscount Caldecote, referring to an earlier case

of SCOTT, but the main body of reasoning in of the SUMMARY JURISDICTION ACT, 1848, to which

His Lordship turns at page 134 and his consideration

of which goes through to page 136 and he sets out

the history of those provisions and turns to the

meaning of the word "qualification" at line Fon

page 135:

A "cµalification", if understood in a

grammatical sense, might cover any

adjective, adverb or adjectival or

adverbial phrase. More probably it means

some qualification, such as a licence,

for doing what would otherwise be unlawful.

There is no usual formula for a

"qualification" in that sense. You have

to look at the substance and effect of

the enactment, as well as its form, in order
to ascertain whether it contains an "excuse

or qualification" within the meaning of the

section.

C2Tl8/l/DR	30	7/5/90
Chugg(2)

Then his conclusion is apparent on page 136, that on the construction of section 29 of

the FACTORIES ACT:

the defenders, if they wish to be excused

for the unsafety of the working place on

the ground that they made it as safe as

was reasonably practicable, have to aver

and prove the facts on which they rely.

I do not desire -to take the Court in greater detail

to any other parts of His Lordship's decision.

GAUDRON J:  I do not understand what it is that you say the

defence would bear the onus of carrying :in any event. You

just proved that an accident happened and,

therefore, you proved that the work environment is

not safe, is that how it works?

MR DWYER: It is submitted though, with respect, that the

questions ought go in the other order. Although there was an accident in this case and although, commonly, there is an accident, it is not necessary

that there be an accident for there to be a breach

of the section. It is sufficient if the working

environment be safe and to contain risks.

GAUDRON J: Yes, but in this particular situation all you

had to do was prove an accident and you had

established the elements of the offence on your

argument, is that not right?

MR DWYER:  The circumstances of the accident may be such as

to demonstrate that the working environment was

unsafe and we say that, yes, once a prosecutor

has established that, that is enough. If nothing

is then said about practicability, then the

prosecution succeeds. If the defendant wants to
say, "Well, I did everything that was practicable

in order to make it saf~', then he has got to carry

the onus of doing that.

GAUDRON J: What, does he have to say, "I did everything

that was practicable to make it safe · in all

circumstances''?

(Continued on page 32)

C2Tl8/2/DR	31	7/5/90
Chugg(2)
:t1R. DWYER:	No, he does not.	The Act sets out what is

involved in the concept of practicability.

GAUDRON J: Yes, but it does not say in what circumstances.

It goes back to the first question that

Justice Deane asked, do you prove that you

did everything that was practicable in all

circumstances and there is, therefore, even if

what you did not do was practicable but had

nothing to do with what happened, the defences

are made out. The point tr:at seems to me to be

missing in your argument is that somebody should

be saying what is practicable in any particular

circumstance, and unless somebody says what is

practicable in the particular circumstance there

does not·- you seem to be talking in a void.

:t1R. DWYER:  Could I perhaps put the matter this way: the cases

in England which for 50 years nearly have been

talking about this requirement of practicability

have said that it is a balancing act. You have

to consider the severity of the risk; the likelihood

of the occurrence of an accident; what steps would

be available to avoid that accident and how

expensive are those steps. The courts have said

if you have a very small risk that it would be

very expensive to eliminate then it may not be

practicable to eliminate that risk. If, approaching

the matter in the other way, you have a very

grave risk which it would be very inexpensive to

eliminate then plainly it would be practicable

to eliminate that risk.

The statutory definition of "practicable"

which is contained in section 4 in effect builds
on the sorts of things that have been said in the

cases and it sets out four matters which are to

be taken into account to arrive at the meaning

of practicable.	Now, some of those matters are
matters peculiarly within the knowledge of the

employer and - - -

GAUDRON J:  But they are if you are talking about something

that has been particularized as something that

was practicable to do in the circumstances.

If you do not have that particular in your

information or attached to your indictment, then

it seems to me what your argument says is that

the defence has got to negative everything that

might be thought of as a solution to the particular

problem by saying it iav impracticable, so when you are

talking about what is peculiarly in the knowledge

of people it does not seem to get very far because

there is not anything to come to grips with.

C2Tl9/l/LW	32	7/5/90
Chugg(2)

MR DWYER:  The starting point must be the employer's own

wo.rk place. That is, it is the employer's
work place; he has established it or taken it over;

he is responsible for the system of work that

operates there; he has installed the plant that is

there. At every stage of establishing that

work place he must turn his mind to the question:

is this system of work safe; is this plant safe;

are there risks to safety or to health which should

be eliminated It is inescapable, in our submission,

that that must be the way in which the thing operates.
Just like the requirement that was in the Factories

Act in England, the requirement under this

legislation is that he, at each stage, turned his

mind to that question and if he says, as to a

particular precaution or step to eliminate risk,

that it is impracticable to eliminate it, then

he must have reasons for that decision and, as

was said in NIMMO's case, he must be able to

give those reasons. And it is, in the end,

going to be a matter of judgment for the Court on
the balance of probabilities, in our submission,

as to whether or not it was practicable to

eliminate the risk. The difficulty is that if it

is the other way, if the prosecutor has to embark

on the question of practicability, if it is an

element of the offence to prove that it was

practicable to eliminate the risk, then the
prosecutor has got to prove that beyond reasonable
doubt and the very balancing act that is involved
in the elements on the question of practicability
are matter which are suitable, not to a prosecutor's
onus to prove beyond reasonable doubt, but to a

defence's onus to prove on the balance of probabilities

simply because it is a balancing matter that is

required.

(Continued on page 34)

C2T19/2/LW	33	7/5/90
Chugg(2)

MR DWYER (continuing):  Now, what of course must happen, in

so far as the indictment goes, is that it specify

the circumstances said to give rise to the breach,

and the informations in this case did that, they

specify particular features of the facts of the

particular accident which were relied on as showing

that the system of work and the work place were

unsafe. They contain an averment that they were

not safe so far as was reasonably practicable but,

because of section 168 of the MAGISTRATES COURT ACT,

the fact that the averment is there does not matter.

The question of the onus of proof can go either way

despite that averment. But the fact that facts

are there specified, which are said to spell out

the particular, in respect of which the workplace

was unsafe, lets the employer know what the

proceeding is all about and he is then in a position

where he can decide whether it was or was not

practicable to eliminate that danger and, if the

matter proceeds in that way, the vacuum to which

Your Honour refers will not, it is submitted, arise.

But I do not know that I can say any more than that

about that particular point.

GAUDRON J: No, I understand that.

MR DWYER:  So far as the minority in NIMMO's case were concerned,

I desire to say this. They both agreed with the view

of the matter that had been taken in the court below
that the requirement of practicability was an
integral part of the duty, or was woven into the
verb, in the expression that had been used in the

court below, and which both Lord Reid and

Lord Wilberforce accept. I should say, with regard

to Lord Reid's reasoning concerning section 16(d) of

the SUMMARY JURISDICTION ACT that, in part at

any rate, His Lordships reasoning,which appears at

page 117, depends on that particular matter of

averment. The Scottish Act does not, as does the

Victorian section 168,contain a provision that

if something is specified or negatived in the

complaint the prosecutor need not prove it if it is

a matter of excuse, exemption, proviso or

qualification.

BRENNAN J:  Which section is that?

MR DWYER: Well, the Scottish one is section 16(d) of the

Summary Jurisdiction (Scotland-·) Act, 1954.

BRENNAN J: That is the one on page 121.

MR DWYER:  It is set out on page 115.

BRENNAN J: Yes, same one.

C2T20/l/FK	34	7/5/90
Chugg(2)

MR DWYER:  The particular words are near the top of

page 116. It says:

need not be specified or negatived in

the complaint, and no proof in relation
to such exception, exemption, proviso,

excuse, or qualification shall be

required on behalf of the prosecution.

That leaves open the problem, what happens if the

matter is specified or negatived in the complaint,

and that is what Lord Reid addresses by reference

to the example that he sets out from the schedule to
the Act, and His Lordship's reasoning appears to
proceed upon the fact that if it is, in fact, specified,
or negatived in the complaint, then the prosecutor will

carry the burden in respect of it, but the Victorian

Act has got additional words which make it plain that

even if a matter of qualification is specified or
negatived in the complaint, the prosecutor does not

carry the burden in respect of it.

BRENNAN J:	What is the reference to the Victorian Act?
MR DWYER:	The Victorian Act is section 168 of the

MAGISTRATES SUMMARY PROCEEDING~ACT, 1975, and it

is subsection (2) in particular which achieves

that effect, when it says:

Whether an exception, exemption, proviso,

excuse or qualification is specified or
negatived or not no proof in relation
thereto shall be required on the part of

the informant.

Those words in section 168(2) are not in the

Scottish provision that is set out in NIMMO's case.

(Continued on page 36)

C2T20/2/FK	35	7/5/90
Chugg(2)

MR DWYER (continuing):  So far as Lord Wilberforce was

concerned, he disposed of section 16(d) - that

is the Scottish provision to which I have just

directed the Court's attention - Lord Wilberforce

at page 129 and then at page 130 disposes of an

argument based on that section as one which begged
the question but, with respect, His Lordship could
only do that if he approaches section 16(d) with the

preconception that there is a distinction between

words which are an integral part of the description

of the offence and a defence taking the case out of

the subsection.

Section 16(d) does not contain anything which

requires an approach or a preconception of that kind

and unless one does come to section 16(d) with

assumptions of that kind, section 16(d) cannot be

said to beg the question in the way that

Lord Wilberforce says that it begged the question. The perhaps general approach, or the general point of difference between Lord Wilberforce and the

majority can be seen in two remarks, one on page 129

where he said that the approach that had been adopted

in the previous authorities was an argument of policy

rather than one of construction. So His Lordship

was there saying that arguments are either arguments

of policy or arguments of construction and not allowing for the possibility that you can have arguments of construction based on matters of policy,

as has since been clearly established by HUNT's case,

and His Lordship, in expressly turning to the matter
of the policy of the Act, said at page 130 that

policy of the Act was not a:

basis for reading one set of words

as if they were another.

Our submission on that would be that our argument does

not require that one set of words be read as if they

were another. What one is seeking to do is to have

regard to the policy of the Act in considering what

is to be implied from the words that are in fact there.

I desire to say something to the Court also about

KINGSHOTT's case, which was the New South Wales

Court of Appeal decision which split two : one;

the majority who said that the onus was on the

employer as to practicabilit~ comprising

President Kirby and Judge of Appeal Priestle~ and

the minority being His Honour Mr Justice McHugh

as he now is. The reasoning of His Honour

Mr Justice Kirby can be best seen commencing at

page 714 where His Honour considers a number of

reasons for placing the burden of proof on the factory

occupier. He notes firstly at line B:

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whilst it is true that the provision

is not expressly phrased in terms of a
proviso or defence, this can be but one

indication of the legislative purpose.

Then he refers to a number of other cases in New

South Wales and in England where similar provisions

had been construed to place the onus on the occupier.

Then he turns, at line F, to the second

consideration.

(Continued on page 38)

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MR DWYER (continuing):

Secondly, whilst it is true that

section 40(1) imposes obligations which

render the factory occupier liable to criminal
prosecution, the provision is also found in a
statute the social purpose of which is to
promote the safety of workers employed in
factories and to reduce the toll of industrial

accidents.

And then he refers to the decisions in this Court,

which I have already referred the Court and

page 715 takes the point:

that legislative requirements concerning industrial

safety have, by making more demands upon

employers, had an impact on community

expectations of the reasonably prudent employer.

And he says that:

It is in this context that the Act here under examination is to be construed. It is part of

a network of common law and statutory rules

designed to promote safety at work and to

prevent accidents. Although it imposes penalties,

it does so in support of an important and urgent

social objective. That objective is achieved in

part by accident prevention secured by compliance

with the statute; in part by criminal

prosecutions where there is a breach; and in

part by the provision of civil damages to those

who can prove a breach on the standards laid

down in the Act.

Now it is only the third of those that does not

apply here.

In this sense, it furthers the objective of the

to classify it as remedial and not simply

statute, with its beneficial social purposes,

criminal legislation. It has a dual aspect.

And could I perhaps point out that exactly the same approach was adopted in WAUGH V KIPPEN to

which I have referred a little earlier on in the

submissions. I will not read the passage to the

Court but it appears in WAUGH V KIPPEN, 160 CLR 156

at 164 to 165.

But the remedial is the paramount one.

And then passing over the reference to a civil

damages claim, His Honour says:

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Once it is shown that the preconditions

to the application of the section are made
out, it is consistent with the nature and
objective of the section to cast on the

occupier of the factory the burden of proving

that it was not reasonably practicable to

comply with the suggested alternative means

of access.

The third factor is that:

this conclusion coincides with commonsense -

and says that a person in the superior position

to -

demonstrate, in very general terms, the costs
and other aspects of suggested improvements

in a means of access, ..... is the factory

occupier.

He then contrasts the factory occupier's position

with that of a worker and we say that one can as

well contrast the position of the occupier with

that of a prosecutor and he then says:

For this reason, it would be rational for the

statute to look to the factory occupier to
prove such matters. What is reasonably

practicable involves not just physical

practicabilities but also financial and

economic considerations. These will normally

be in the exclusive knowledge of the factory

occupier and quite unknown to a claimant.

Just as, without admissions, they will be quite

unknown to a prosecutor.

DEANE J: Except His Honour seems to have indicated that his

view may well have been different if it was a

prosecution.

MR DWYER: Well,His Honours remarks are expressly directed to

the question of a civil claim.

DEANE J:  No, I was looking at line Con that page: Accordingly, the argument that, in a civil

damages claim, the provision of section 40(1)

of the Act should be read so as to impose the

entire onus of proof on the plaintiff, because

in a prosecution the entire responsibility

might lie on the prosecutor

MR DWYER:	But His Honour is not there accepting that in a
prosecution the entire responsibility lies on the

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prosecutor. He is disposing of an argument based

on that and, indeed, it is submitted that one can

see, as I recall elsewhere in His Honour's

judgment, that he accepts the proposition that

the matter is to be approached in the same way - - -

DEANE J:	I see.
MR DWYER:	- - - whether it is a prosecution or whether it
is a civil claim.

DEANE J: Well, if that is so, that answers what I put to.

(Continued on page 41)

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DEANE J: If that is so, that answers what I put to you.

DAWSON J: But all.of this really avoids the problem, does it

not, all ..... talk about broad objects and so on.

but it is as Lord Wilberforce put it, you are

trying to identify the exception before you have
identified the obligation if you are going to talk

in terms of exceptions and in reality what you have

got is something that is inherent in the obligation

itself: part of its definition. Now, it is an

almost impossible task to identify the exception
or the qualification before you have identified

the obligation.

MR DWYER: Well, if one starts off with the view that

the primary definition of the obligation - - -

DAWSON J: Might I just add, before you - and, of course,

the problem becomes all the more acute in a

prosecution.

MR DWYER: Well, if one accepts that the first question, as it

were, is, were the premises safe, or was the

factory safe or was the machine safe, then there is

no difficulty in the matter.

DAWSON J:  But that is not the question.

MR DWYER: Well, it is submitted that the approach that has

been adopted consistently until now is that that is

the way to approach the matter. That is the way that

the question has been looked at for 50 years.

DAWSON J: Well, not by everyone. I was putting - I know he was

in dissent, but Lord Wilberforce makes a very
forceful observation that you are putting the cart

before the horse, in effect.

MR DWYER: Well, it is true that he does and that, no doubt, is

in his acceptance of the expression that the words as

to practicability are woven into the verb.

DAWSON J: It simply is not the obligation that is imposed upon

the employer to say that and how can you find what

the ~xception to the obligation is until you have

identified the obligation.

MR DWYER: All that we can say as to that is that the obligation

is to make safe and that -

DAWSON J: There is no absolute obligation to make safe.

MR DWYER:  Well, if one says then one is dealing with the matter

of qualification -

DAWSON J:  But one does not. One says that the extent to which

there is an obligation to make safe is explained in

the section and if you say it that way then it becomes

a matter of definition, not qualification or exception.

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MR DWYER:  But the difficulty, with respect, is that one can

say it either way.

DAWSON J:  No, one cannot. I mean, it may be more convenient

for a variety of reasons, which are given at length
in this judgment, to try to say it the other way

but in the end one comes back to that.

MR DWYER: Well, the reason for saying that one can say it

either way is - or our foundation for saying that one

can it either way is what is said by the majority in

the House of Lords and what has been since applied

by the House of Lords and what is said by the majority

in KINGSHOTT. The fact that it has been, in effect,

said over and over again that one could say it either

way is our bRsis for saying that one can.

DAWSON J:  Yes, you have a lot in tenns of authority in your favour, but

the fact of the matter is that you are really - I am

putting this to you - calling something a qualification

or exception which is not a qualification or

exception at all but is inherent in the very thing that

constitutes the offence or the obligation.

MR DWYER:	What was said, even by the minority, in NIMMO's case was that it was a matter of qualification either way.
If I could perhaps go back to what Lord Wilberforce
said - if I could go to the paragraph at initial Don
page 128:

When a qualified duty is imposed, again there

are alternatives. The qualification may be made

an integral part of the definition: or the duty

may be stated in unqualified terms followed by

a proviso, exemption or exception which, if

satisfied or demonstrated, takes the case out of

the section. In either case - and I shall

return to this point - there is a qualification

of the duty.

It is submitted that, properly considered, what Lord Wilberforce says is that it is qualified either wav

but he prefers, of those two analyses, to this

qualified duty that the qualification is made "an

integral part of the definition". Whereas the majority

took the view that the qualification was a matter

where the duty could be 'kated in unqualified terms

followed by a proviso, exemption or exception which,

if satisfied or demonstrated, took the case out of

the section."

lDrd Reid, at the beginning of his lDrdship' s j udgrnent, approaches the matter in a similar way. At page 113:

:t,fy lords, a considerable number of statutes prescribe,

or enable regulations to prescribe, what steps an

employer or occupier must take to prOITDte the safety of
persons working in factories, mines and other premises

where -work is carried on.

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MR DWYER (continuing):

Sometimes the duty imposed is absolute: certain things must be done and it is no

defence that it was impossible to prevent

an accident because it was caused by a

latent defect which could not have been

discovered - still less is it a defence

to prove that it was impracticable to carry

out the statutory requirement.

But in many cases the statutory duty is qualified in one way or another so that no

offence is committed if it is impracticable terms in one section and in another section
or not reasonably practicable to comply with
the duty. Unfortunately there is great variety
in the drafting of such provisions.

it is provided that it shall be a defence to

prove that it was impracticable or not

reasonably practicable to comply with the

duty. Sometimes the form adopted is that

the occupier shall, so far as reasonably

practicable, do certain things. Sometimes

it is that the occupier shall take all

practical steps to achieve or prevent a

certain result. And there are other provisions

which do not exactly fit into any of these

classes. Often it is difficult to find any

reason for these differences.

And he then says that:

There has been much doubt where the

onus rests in these cases -

and after developing that a little he says:

In the present case the pleadings have been

a decision at least with regard to the section	deliberately drawn in such a way as to require
on which the pursuer relies.

And His Lordship Lord Reid had in an earlier case

said that the matter was doubtful in the same way.

DAWSON J: Yes, but his view is plain at the bottom

of page 117 and at the top of page 118.	On the
other hand, you take this section:

that 11all practicable steps shall be taken"
to prevent an explosion, to restrict its

spread, and to remove fumes, etc. I cannot see

how a prosecutor or pursuer could frame a

relevant complaint or condescendence -

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whatever that might be -

by merely alleging that an explosion occurred,

or that it spread, or that fumes were not
removed, leaving it to the accused or

the defender to show that no practicable

steps could have been taken to avoid that.

MR DWYER:	That is the conclusion which His Lordship reached.
DAWSON J:	What he is saying is you identified the duty,

and then it might be possible to look for exceptions

or qualifications and apply the rule that you are

attempting to apply. But you first have to

identify the obligation.

MR DWYER:  That is certainly the view that His Lordship took.

DAWSON J: All I am asking you is how can you identify an

exception to an obligation before	you first
identify the obligation?

MR DWYER: Well, I can do no more than say that we say that

the obligation is to make safe and the exception

to it is to say that if it was not practicable to

make it safe I have an excuse and I have no other

position. That is - - -

DAWSON J:	Well, that is the proposition.
BRENNAN J:	The difficulty with it is that there seems to be

some uncertainty about the meaning of words.	To
speak of an obligation and to speak of a

qualification of an obligation as being something

distinct from it, seems to be a contradiction.

After all, if an obligation is qualified, it is

the qualified obligation and it alone which exists

and yet in section 168 of the MAGISTRATE'S

(SUMMARY PROCEEDINGS) ACT it is treated as though

it is something distinct from the obligation.

Again, to look at section 21(1) of the Act, the	obligation is imposed by the verbs "provide and
maintain". It is modified by the phrase adverbial in character I should imagine
"so far as is practicable" and the object of the
words is working environment that is safe.
So that as clear as grammar can make it, it is
a qualified or modified obligation that is imposed
but yet section 168 seems to expect that that can
be dissected out in some way.

DAWSON J:	Or put in another way, a limited obligation.
MR DWYER:	Section 168 does say whether it does or does not

accompany the description .of the offence - - -

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BRENNAN J:	But that is what I cannot understand.	I cannot

understand how 168 operates? I am not saying

your argument is wrong. It is just simply that

I do not understand how one can identify an

obligation which is qualified in such a way as

to separate it into an obligation absolute on the

one hand with a qualification on the other,

treating those two things as elements where,

in fact, they are conflated.

MR DWYER:  The difficulty as a matter of logic is that

the result is the same either way.

BRENNAN J: Except for the intervention of 168.

(Continued on page 46)

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MR DWYER: Section 168, of course, is dealing with particular

problems in courts of summary jurisdiction and it says a number of things concerning proceedings in the court of summary jurisdiction. It is first of

all designed to say that in deciding whether

something is an exception, exemption, proviso,

excuse, or qualification, it does not matter whether

it accompanies the description of the offence, or not,

and it then says something further, that regarding

anything that can be characterized as an exception,
exemption, proviso, excuse, or qualification, that

the defendant may prove it but it need not be

specified or negatived in the information.

Then it makes a further provision that whether such things are specified or negative or not, the

informant does not have to prove them. Now, our

submission on section 168 is that the section means

exactly what it says and that if there is anything

in an Act, order, by-law, regulation or document

creating an offence which can be said to constitute

an exception, exemption, proviso, excuse, or

qualification, then the section operates.

BRENNAN J:  That means that section 168 operates by expanding

the proscribed conduct. I mean, take the present case.

I take it that by lowering a sheet of steel from the roof of this building it would have been possible to

fence off the hopper door. Now, that is perhaps

absolutely ridiculous, but one could say that that is

something that could have been put there technically

to maintain a safe place of work. Is the

qualification that it is nonsense something that

rests upon the defendant to prove?

MR DWYER:  Well, with respect, sir, the guarding problem can

be approached differently from that, that is the

question whether or not appropriate steps had been

taken to make the work place safe is best approached

by asking what reasonably is required to make the

work place safe, and that is really what the

definition of "practicability" in the Act turns its

mind to. When it talks about the assessment of

the hazards and risks and the steps necessary to

guard agains them - - -

BRENNAN J:  But your proposition is that that is no part of a

prosecution case.

MR DWYER:	That is right, yes.
BRENNAN J:	Well, what you are saying is that anything,

however outrageous, that can be conjured up by the

fertile minds of the prosecutor, falls within the

purview of the offence unless the defendant discharges

an onus on the balance of probabilities to show that

that thing, thus conjured up, is not practicable.

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MR DWYER:  Our submission is that the prosecutor does not

approach it like that but that what he does is prove

that the work place was unsafe and that, if nothing

more is proved, then the section is called into

play and if a defendant wants to say that it was not practicable to make it safe, then it is up to him to

establish that on the balance of probabilities.

So that the prosecutor approaching the matter in

that way does not have to conjure up anything in

terms of what practicability requires.

BRENNAN J:	He does not have to provide any particulars?
MR DWYER:	No, he does not and nor does he face a submission

of no case if he has not dealt with the matter of practicability. Once he proves that it is unsafe

he has sufficiently discharged his burden at that

stage, at least in terms of surviving the submission of no case and that if the matter then goes into defence,

if the defendant says nothing about practicability,

then it is entirely sensible and appropriate that

there should be a conviction. If the defendant wants

to assay the matter of practicability, then it is for

him to do so and the prosecutor, I suppose, in looking

at a particular case, has got to make a judgment

about whether or not he thinks a defendant is likely

to do that and he has perhaps got to turn his mind

in anticipation to whether or not he wants to lead
any evidence in anticipation of such a defence, but

that is not a matter which is going to affect him

in terms of a no case submission. It will only

affect whether or not the defendant succeeds on the

balance of probabilities at the end of the case.

(Continued on page 48 )

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BRENNAN J: What is the issue of fact to which the defendant

must turn his attention for the purpose of

discharging his onus, where the prosecutor has

simply alleged this place is unsafe?

MR DWYER: This issue is, was it practicable to make it safe,

having regard to the meaning of "practicable"

that is in the Act.

BRENNAN J: Well bringing it down to a particular case, one

would expect that the lack of safety, the unsafety,

would be specified in some respect,

otherwise - - -

MR DWYER:	Yes, of course and if nothing was said about what
constituted the lack of safety in the indictment,
then it would, no doubt, be able to be struck out.
If particulars were sought, particulars would have
to be given as to what constituted the lack of
safety and, as I think I said earlier to Justice Gaudron, it is that description of what
is unsafe that, in a sense, says enough from the
point of view of a prosecutor, whether it would or would not have been practicable to make it safe, that is, supposing it said that the system of
work was unsafe because proper instructions had
not been given to the worker. There was an
obvious danger there; obvious to anybody who knew
the full facts, but not obvious to a worker who
was ignorant of them and that was specified as the
lack of safety.  Then it is a very simple matter
instruction? 11 and the specification of the lack to ask, "Well, was it practicable to give such an
of the instruction means that the defendant knows
exactly where he is if he wants to raise a defence
of lack of practicability. If it is a more elaborate matter, if it is said that the entire system of
work was unsafe, that may raise very complex matters
and it may well raise matters of assessment of
risk and of expense and what the defendant will have
to turn his mind to there is to look at what is alleged as particulars of the lack of safety in the system of work and to ask, "Could I, as a matter
of practicability, have remedied those matters?"
And,in our submission,there is no particular
difficulty about that at all.
DAWSON J:	But why should there be any particulars at all if you allege against me as an employer that I have
failed to provide a safe working environment without
risks to health?  Why should you have to provide

particulars? It is no part of your case.

MR DWYER: Well, we have to provide particulars as to the

lack of safety and of the risks to health.

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DAWSON J:	Why?
MR DWYER:	Because that is what we are prosecuting on the
basis of and if - - -
DAWSON J:	As it was put to you earlier, you merely have
to say that an accident happened.

MR DWYER: Well, with respect, we are likely to do rather

more than that and - - -

MR DAWSON J:  But I am not looking at what you are likely

to do, but what are your obligations.

MR DWYER: Well, this may raise the question of the interplay

between section 21(1) and section 21(2). If it

was a section 21(2) matter, and if it is a case

in which, for example, the lack of safety in the

work place arose out of unsafe plant and we were

relying on the failure to comply with the

section 21(2)(a) in failure to provide safe plant,

we would have to specify that. If we were

relying on some other of the particular matters are set out in subsection (2), we would have to specify that. If we were relying on other

circumstances which went beyond what was set out

in section 21(2), which we said constituted a

failure to provide a safe environment, we would

have to specify those matters, it is submitted.

And if we just had an indictment in general terms,

which simply repeated the words of section 21(1)

and the defence sought particulars, it is our

submission we would be bound to give them and,

indeed would, perhaps in an appropriate case, be

compelled to give them.

BRENNAN J:  Now if you did give them, would not the next

question be, "Was there any obligation in

practice to maintain the premises with that

particular in place?". In other words, can one

ask the question of whether there is a breach, with respect to a specific item of plant or the absence of plant, except in the terms of a section itself?

(Continued on page 50)

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MR DWYER: Well, the submission is that one can, and that the

specification of the lack of safety or the risk to

health will sufficiently identify a prima facie

breach of the section, and that it is in order to

identify that prima facie breach it is not

necessary to go to the matter of practicability.

DAWSON J: Well, can I put this to you? If I asked you - I

have forgotten which role I am in at the moment but,

as an employer - to furnish particulars of what you

alleged was the failure to provide, as far as is
practicable, safe plant and systems of work within
21(2)(a), what would you say in reply to that

request for particulars?

MR DWYER: Well, we would say, for example, that the machine

that was used did not have guards to protect a worker

against obvious dangers when the machine was in use.

Or we would say - - -

DAWSON J:  So that you would accede to the request to provide

particulars of how far there was a failure to

provide safe plant and systems of work so far as is

practicable, is concerned.

MR DWYER: Well, no. In specifying what was unsafe about

the plant, which we are obliged to do, we say something

from which, if there was no other evidence,

inferences may be able to be drawn about practicality,

but that does not mean that we are undertaking the
burden of showing that it was practicable to make it

safe.

DAWSON J:  So you would say to me, "Well, I will tell you what

you ought to have done, but I will not tell you

whether it is practicable"?

MR DWYER:  Yes. Could I perhaps say this, Your Honour. The

matter might arise in a somewhat different way.	What
may happen is that an inspector may have gone into

the factory, and may have given a prohibition notice under section 44, I think it is, of the Act, and all

that that prohibition notice does is to say that
this piece of equipment, or whatever must no longer

be used because it carries with it a risk to safety.

The prohibition notice says nothing at all about

practicability and - - -

DAWSON J: That is whatI thought your reply would be,

'1 am not obliged to tell you that. All I am

allowed· to say is the thing is not safe".

MR DWYER: That is all that the section contemplates would be

done in a prohibition notice, but for purposes of
criminal ~roceedinas - - -~

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DAWSON J:  And on your argument, that is all you are required

to allege.

MR DWYER:  But we have to give particulars of the way in which

it is unsafe.

DAWSON J:  I am not sure.

TOOHEY J: Well1 that must be the position, must it not,

Mr Dwyer? How could you succeed in an indictment

or sustaining an indictment that said no more than
that the defendant had failed to provide a working

environment that was safe and without risks to health.

MR DWYER: If that is all that we proved?

TOOHEY J:  No, no, if that is all that was alleged. A request

for particulars would at least oblige the
prosecutor to identify in what respects the working
environment was said not to be safe and not to be

without risks to health.

MR DWYER: Well, I suggested to His Honour Mr Justice Dawson

that we acknowledge that we would have an obligation

to specify the ways in which the premises, the
plant or whatever, were not safe. It is a question

of whether we can carry an obligation beyond that.

TOOHEY J: Well, that is true. I thought you were balking

perhaps at the first of those propositions.

MR DWYER:  No, I understood that it was His Honour that was - - -

DAWSON J: Yes, I am, because there is a difference - - -

DAWSON J:  - - - in something not being safe and the measures

which are required to make it safe. But you say the

measures which are required to make it safe are no

part of your case.

MR DWYER: No. With respect, that is - - -
DAWSON J:	So all you have say is, "Well there was a machine

which allowed him to put his hand in it" or

whatever it might be.

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MR DWYER:	Yes.	As I think I acknowledged to Your Honour

a little while ago, what one says are particulars

of the way in which the machine or whatever was

unsafe may carry implications as to what would be

required to make it safe but they are different things.

One can specify the lack of safety by pointing to the

dangers associated with the machine. There might be

a variety of ways in which those dangers could be

avoided and it is in considering that variety of ways

of avoiding the danger that the question of

practicability arises.

DAWSON J: Of course, and the moment you specify ways - I mean,

there is an obvious way of avoiding danger which is

to switch the machine off - but in specifying ways

short of that you are then attempting to identify

the obligation of the employer, something you say you

are not required to do.

MR DWYER:  I may not have explained myself as I desired

because our description of our obligation is to say
that we do no more than identify the dangers, identify

the ways in which the machine or whatever is not safe,

and that in doing that one does not necessarily say

anything about ways of making it safe.

BRENNAN J: 

Is this your proposition, that you establish

that the environment is dangerous and then it is up
to the employer to establish that it was not
practicable to make it safe?

MR DWYER: 

Yes, that is so. We say that that is what is

contemplated over and over again. Perhaps some

assfstance may be obtained by looking at the actual
informations in this case as demonstrations of

the way in which the task has been in fact approached.

They appear at pages 440 and 441 of the appeal book.

We set out at page 440 the alleged breach.	One can
go to the middle of the form of words:

did fail to provide and maintain as	far as was practicable for employees
a working environment that was safe and without risks to health when it
did fail to provide and maintain plant
and systems of work that were so far
as was practicable safe and without risks to health in contravention of the provisions of s.21(1) and 21(2)(a) of the ..... Act in
that one Robert Mark Everest, an employee, was able to gain access to the trapping
space created by the power driven hopper
door and frame of a Banbury mill on which he was carrying out maintenance in
accordance with his duties.

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MR DWYER (continuing):  Now, there we have specified what was

unsafe about the plant. He was able to gain access

to the trapping space created by the power-driven

hopper door and frame.

GAUDRON J: But, you see, an employer would answer that by

saying it was not practicable to turn off the power;
it was not practicable to sever the hydraulics; it

was not practicable to have the door permanently in

a closed position; it was not practicable to brace

the door et cetera.

MR DWYER:  Well, he is most likely, with respect, to say it was
not practicable to guard against access to the trapping
space. If he desires to say that - - -

GAUDRON J:  Yes, and he just says that, does he? He just

says that, but what about turning off the electricity? this situation both of those would have given you

a safe work environment; bracing the door from the

other side.

MR DWYER: 

Yes.

GAUDRON J: 

On your argument, he must negative all of those,

everything that presumably the magistrate can think
of.

MR DWYER: 

Well, some of them will be better candidates than

others for being practicable and that is why I said
that practicability involves, under the Act, a

balancing exercise. That is what the definition
of "practicability" contemplates and, for example,

something that guarded against a small risk at a

very great cost would not be practicable and one could no½ in terms of the definition in the Act, contemplate that it would be.

The difficulty may be, perhaps, put this way:

that problems which an employer may face in proving

practicability are one thing, if he has to do them

when it is his plant, his factory, his costings and

so on but if - - -

(Continued on page 54)

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GAUDRON J:	But it is also one thing if you know what you are trying to disprove which is what your argument
leaves wholly at large.
MR DWYER:	But if the prosecutor has to do it, then the

difficulties are exactly the same on the prosecutor's

side, except that the prosecutor does not know all

of these details about the factory.

GAUDRON J:  Except if you were to say that this machine was

unsafe because the power there was a live current

going through it, and the practical thing was to have

it switched off at all times when it was not in use

in the manufacturing process. At least one would

know what the parameters of the dispute were.

MR DWYER:	Yes.
GAUDRON J:	Unless you say - this point is really quite

anterior to anything of onus but so long as you put

your argument in terms of an absolute obligation

and qualification I can well imagine that the defence

will talk for days and days, and days and days, with

the prosecutor saying, "That's not what I allege,

thank you", and then some more, "No, we don't rely

on that", and so on.

DAWSON J:  In other words, you are alleging an obligation, you,

the prosecutor, but you will not say what the

obligation is, in practical terms.

MR DWYER:  Well, in practical terms we say it is an obligation

to make safe.

DAWSON J:  But you do not really because then if I ask you for

particulars - - -

MR DWYER:  We are happy to give particulars of the lack of

safety.

DAWSON J:	And are they particulars of what is practical or what is not practical?
MR DWYER:	The particulars of the lack of safety may be relevant

to the question of practicability, that is, as I said
before, matters about practicability may be implied

or inferred.

DAWSON J: All right, well, they may or may not be what is

practicable and if they are not what is practicable

then it is not telling the defendant what you allege

his obligation was.

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MR DWYER:  The difficulty may be more apparent than real,

in our submission, because if you look at a

concrete instance like the instance that is at

page 440, when we spell out that the lack of

safety or the danger was the fact that the employee
was able to gain access to a trapping space and
we specify quite clearly what trapping space

we are talking about. We have spelled out what

was unsafe about that particular piece of plant.

And if we proved that and nothing else were

proved, it might readily be inferred that it was
practicable to guard against that danger by

limiting access to the trapping space.	But the
question is who has to prove that it was

practicable to guard against that danger and we

say that it is the accused that has to prove it.

TOOHEY J:  But Mr Dwyer, what I do not understand is on

your argument would you not simply decline to

provide any particulars of practicability, simply

say it is not the prosecution's task to do that?

Once you concede an obligation to provide

particulars of practicability, I do not see what
happens to your substantive argument. It just seems

to go by the way.

MR DWYER:  Lord Pearson, I think it is, seems to have taken the

view that as a matter of prudence and practicability

it would be sensible for a prosecutor to advise
the defence of what the prosecutor's approach to

the question of practicability was.

TOOHEY J:  Well you concede that -but the object of these

questions has been to test the extent of the

obligation under section 21 and if you accept

that there is an obligation on the prosecution,

if particulars are sought, to provide particulars

of practicability, I do not for the moment see

how that obligation can arise unless it is

part of the case which section 21 casts upon a

prosecution.

(Continued on page 56)

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MR DWYER:	With respect, that is why I have been resisting
the pressure.
TOOHEY J:	Yes, but your resistance seems to be crumbling

a bit.

MR DWYER: No, my last remark, to suggest that the difficulty

was more apparent than real, was an endeavour to

turn the discussion from extraction to a concrete

example and suggest that there may be an apparent

difficulty while one considers the matter in the

abstract but that if one turns to a concrete example

that difficulty will not exist and the suggestion

was that the information that is there, at

page 440, provides such a concrete example and

that the difficulty that might be thought to exist

while the matter is dealt with in the abstract

is dissolved by looking at the concrete example.

TOOHEY J: Just taking that concrete example, for a moment,

would it be enough on the argument that you are

presenting to allege not that one Robert Mark Everest

was able to gain access to the trapping space but

that any employee carrying out maintenance on this

machine was able to gain access to the trapping

space?

MR DWYER: Certainly.

BRENNAN J: Is this your proposition, that you may be under

an obligation to provide particulars of the danger

but you are not under an obligation to provide

particulars of the means of rectifying it?

MR DWYER:  Yes, Your Honour, and I think I did, perhaps mixed

up with other things, say that some time ago.

BRENNAN J: As I have said, that is as I understand your

present proposition.

MR DWYER:  Yes, it is.

BRENNAN J:  Can you give us any indication of how long your argument will take? I know that is subject to

all just exceptions, but - - -

MR DWYER:  In terms of my progress through what I had desired

to say I have not got terribly far.

BRENNAN J:  But you have come to grips with the main points,

have you not?

MR DWYER:  I think I would not be certain that I have done that,

Your Honour. I would really want to look back

over what I had prepared and see how far exactly say at the moment anything beyond saying that I

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would be a little time but I am not able to

say how long. I will be in a much better

position to say how long first thing in the

morning.

BRENNAN J:  You are thinking in terms of more than an hour

on the whole case?

MR DWYER:  I mean, it really is very difficult to say,

Your Honour. I would desire to assist the Court

to the best of my ability but it is possible that

it could be as long as an hour.

BRENNAN J: That is on this aspect, do you mean?

MR DWYER: On the onus question, yes, it is. It may be that

there are some matters that it is not necessary

for me to deal with in reply to what my learned

friend has said and I can leave that until a later

stage and I would endeavour to exclude matters

of that kind.

BRENNAN J:  Yes, thank you. Mr Gillard, can you give us

any indication at all?

MR GILLARD:  I would think no more than an hour, Your Honour on this aspect.

BRENNAN J:  And on the following aspect?

MR GILLARD:  Probably about half an hour. And then the

regulation 10, half an hour to three quarters of

an hour, I suppose.

BRENNAN J:  Yes. The prospects for the following case do

not seem very bright for tomorrow.

MR GILLARD:  No, they do not.

BRENNAN J: It is understood by counsel, I take it, that

tomorrow the Court is available only until the
luncheon adjournment?	The Court will adjourn until
10 am tomorrow morning.

AT 4.35 PM THE MATTER WAS ADJOURNED

UNTIL TUESDAY, 8 MAY 1990

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