Criminal Law (Vict.)—Burden of proof—Statutory offence—Failure by employer to provide safe working environment so far as practicable—Onus of proof of practicability—Occupational Health and Safety Act 1985 (Vict.), s. 21. Statutes—Interpretation—Construction that would promote purpose or object of Act to be preferred to one that would not—Interpretation of Legislation Act 1984 (Vict.), s. 35(a).
Decisions
BRENNAN J. Although I am in general agreement with the judgment of Dawson, Toohey and Gaudron JJ., I would identify the two considerations which seem to me to dictate the construction which their Honours place on s.21(1) of the Occupational Health and Safety Act 1985 (Vict.) ("the Act"). First, the words "so far as is practicable" modify the verbs "provide and maintain" which create the obligation. As a matter of grammar the obligation imposed by s.21(1) is not an absolute obligation. Secondly, as a matter of substance the elements of the supposed qualification relate to elements of the same character as the elements of the obligation, namely, the taking of precautions required to make a working environment safe and without risks to health. The words "so far as is practicable" prescribe the measure of the precautions to be taken; they do not prescribe a qualification of a character different from the character of the elements of the obligation: see per Fullagar J. in Barritt v. Baker (1948) VLR 491, at p 495.
2. If the result of the informant's appeal depended on the construction of sub-s.(1) of s.21, these considerations would lead to a dismissal of the appeal. Reference to the informations, however, shows that the informant relied on par.(a) of s.21(2) to establish a contravention of s.21(1) and alleged facts which were intended to satisfy that paragraph. Although sub-s.(1) is the sub-section which creates the obligation and, in conjunction with s.47(1), creates the relevant offence, sub-s.(2) prescribes a series of duties a failure to fulfil any one of which amounts, by force of that sub-section, to a contravention of sub-s.(1). Therefore the only issues for determination on the hearing of the informations were whether the defendant had failed, in the respects alleged, "to provide and maintain plant and systems of work that are so far as is practicable safe and without risks to health". The words "so far as is practicable" in par.(a) of sub-s.(2) are an integral part of the clause which qualifies "plant and systems of work". To treat those words in that clause as words of exception would be to place a forced and unnatural construction on the clause. In the Courts below, attention was focussed on the modifying phrase in sub-s.(1) rather than on the corresponding words in sub-s.(2)(a). Although, in my view, that approach misconceived the true issue for determination, it led to no error in the result. I would therefore dismiss the appeal.
3. I do not rest this conclusion on…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Chugg v Pacific Dunlop Ltd [1990] HCA 41
Case
[1990] HCA 41
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal from a decision of the Supreme Court of Victoria concerning an alleged breach of the *Occupational Health and Safety Act 1985* (Vic). The appellant, Mr. Chugg, was the employer of a worker who suffered injury, and the respondent, Pacific Dunlop Ltd, was the employer of the injured worker. The dispute centred on whether Mr. Chugg had failed to provide a safe working environment so far as was practicable.
The primary legal issue before the High Court was the proper construction of section 21 of the *Occupational Health and Safety Act 1985* (Vic), specifically concerning the onus of proof regarding the practicability of measures to ensure a safe working environment. The court was required to determine whether the prosecution bore the burden of proving the impracticability of alternative safety measures, or if the employer bore the onus of proving the practicability of the measures they had taken. This also involved considering the principles of statutory interpretation under section 35(a) of the *Interpretation of Legislation Act 1984* (Vic), which mandates preferring an interpretation that promotes the purpose or object of an Act.
The High Court held that the prosecution bore the onus of proving that it was practicable for the employer to have taken further or different measures to ensure the safety of the employee. The court reasoned that the phrase "so far as is practicable" imposed a positive obligation on the employer, but the prosecution must establish that the employer failed to meet this obligation. This required the prosecution to demonstrate that there were measures available that were practicable and would have prevented the injury. The court rejected an interpretation that would place the burden of proving practicability on the employer, finding it inconsistent with the general principles of criminal law and the specific wording of the section.
The High Court allowed the appeal, quashed the conviction, and ordered that the information be dismissed.