CSR Ltd T/As CSR Wood Panels v Howard Henley Stevenson No. SCGRG 95/1026 Judgment No. 5419 Number of Pages 8 Employment Law

[1995] SASC 5419

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA MATHESON(1), BOLLEN(3) AND LANDER(2) JJ

CWDS
Employment law - the contract of service and rights, duties and liabilities as between employer and employee - liability of employer for injury to employee - appellant charged with breach of s19(1) Occupational Health, Safetyand Welfare Act 1986, for failing to provide a safe system of work - section made a criminal offence of the civil common law duty owed by employer to his or her employee - Industrial Magistrate correctly found that risk of injury could have heen ameliorated in a number of ways - Industrial Magistrate did not reverse onus of proof.

HRNG ADELAIDE, 7-8 December 1995 #DATE 8:12:1995 #ADD 11:3:1996

Counsel for appellant:     Mr M. David QC, with him
   Ms G. Di Stefano

Solicitors for appellant:    Lawson Downs

Counsel for respondent:     Mr A. Moss (7/12/95) and
   Ms J. Rugless (8/12/95)

Solicitors for respondent: Crown Solicitor

ORDER
Appeal dismissed.

JUDGE1 MATHESON J I ask Mr Justice Lander to give first judgment.

2. I agree with the reasons given by my learned brother for dismissing the appeal.

3. The order of the court therefore will be that the appeal is dismissed. The question of costs will be adjourned.

JUDGE2 LANDER J This is an appeal, by leave from the decision of the Full Industrial Relations Court dismissing an appeal against conviction. The appellant was charged and convicted of a breach of s19(1) of the OccupationalHealth, Safety and Welfare Act 1986, in that:
    "Being an employer did not in, respect of an employee,
    namely, Barry John Morrish, employed by you at work at the
    said address, ensure, so far as was reasonably practicable
    that the said employee was safe from injury and risk to
    health while at the said work."

2. The particulars of the offence are said to be that the employer did not provide and maintain, so far as was reasonably practicable, a safe system of work, and the employer failed to comply with the approved Code of Practice for Manual Handling.

3. The second ground stated in the particulars was abandoned because the respondent was unable to prove that the Code of Practice had been promulgated at the time of the alleged offence. Before the hearing the appellant sought and obtained further particulars of the following question:
    "How did the defendant fail to provide a safe system of
    work."

4. The particulars given by the respondent were:
    "(a) By failing to provide mechanical assistance with which
    to carry out the work, namely the lifting of heavy bags of
    material (of about 50 kilograms) from a pallet to a mixer in
    feed chute situated in the premises of the defendant (the
    system of work hereinafter referred to `as the said work').
    (b) By failing to provide or make available adequate
    numbers of employees to assist the employee to carry out the
    said work.
    (c) By failing to adequately supervise the employee in
    carrying out the said work.
    (d) By failing to provide adequate instruction and training
    to the employee in carrying out the said work. "

5. The Industrial Magistrate determined, which determination was concurred in by a Judge of the Industrial Court to whom the appellant appealed, and then the Full Court of the Industrial Relations Court to whom the appellant further appealed, that the section enacted to make a criminal offence of the civil common law duty owed by an employer to his or her employee.

6. It was further held by the learned Industrial Magistrate, and again concurred in by both of the superior courts, that this is not an offence which involves proof that the employer, by any particular responsible officer, had actual knowledge of the risk of injury or the availability of remedial measures and of the failure to institute them in due time.

7. Mr David QC, who led for the appellant in this court, expressly disclaimed any argument that that interpretation was wrong.

8. In those circumstances it seems to me appropriate to accept, without deciding, that the approach of each of the courts below as to the construction of the section was correct. Whilst, therefore, the circumstances of the civil common law liability were relevant, as of course the learned magistrate recognised, the section required for proof of an offence, proof beyond reasonable doubt. The onus was, as his Honour determined, always upon the respondent to establish beyond reasonable doubt each of the elements of the offence, and it was upon the respondent to disprove any reasonable hypothesis consistent with innocence.

9. The learned Industrial Magistrate determined that the respondent, to establish the elements of the offence, would need to establish the following:
    "1. that the defendant was an employer;

2. that he employed the worker named, Barry John Morrish,
    at its plant at White Avenue, Mount Gambier on and before
    16th August 1991;

3. that in the course of his work, the defendant required
    Mr Morrish to do the work particularised;

4. that the work entailed a risk to the health of the
    safety or the worker arising from the system of work
    employed;

5. that there was one or more measures that the employer
    did not take which, had it or if they been taken, would have
    eliminated or reduced that risk to his health and safety;
    and

6. that measure or those measures was or were reasonably
    practicable in the time stipulated in the particulars and
    the circumstances revealed by the evidence."

10. As to the last matter, it ought to be noted the particulars do not stipulate a time but no point was taken in respect of that.

11. Mr David, in his argument in this Court, expressly agreed that his Honour had in those circumstances correctly stated the elements of the offence.

12. His Honour said early in his reasons that there was no dispute or issue raised about the first three elements of the offence as I have listed them, and in this court Mr David again accepted that there was no dispute about those three elements and argument was directed simply to whether the respondent had made out, to the appropriate level of satisfaction, the fourth, fifth and sixth elements.

13. The work that the employee was required to do was carried out over an eight hour shift. During that shift he was obliged to check the level of a chemical mix and to replenish that chemical mix by tipping ammonium sulphate into a tank. All of the evidence suggested that that needed to be done only once on each eight hour shift, although on occasions, but only rarely, twice.

14. The ammonium sulphate was replenished by the employee taking a bag of ammonium sulphate from a pallet, lifting it to a vertical height somewhere between a half a metre and slightly more than a metre, depending upon the number of bags on the pallet, then swinging the bag laterally through a distance of about half a metre into the mouth of the chute, while at the same time turning his body and his feet approximately 90 degrees. The bag was then rested on the mouth of the chute, cut open and the contents emptied into the chute.

15. It was in the context of that type of work that the prosecution was obliged to establish that it carried a risk to the health of the safety of the worker, and if that was made out, then to establish that the employer did not take one or more measures which would have eliminated or reduced that risk, and that the measures which would have eliminated or reduced the risk were reasonably practicable and available in the time stipulated in the particulars.

16. Each of the courts below concurrently determined that there was sufficient evidence to make out each of those matters, so the appellant is faced in this court with the difficulty of persuading this court to interfere with concurrent findings of fact of three different courts.

17. The grounds of appeal in this court which were pursued are:
    "1. The Full Industrial Relations Court erred in finding
    that on the facts which the learned Industrial Magistrate
    established as being proven the offence was made out.

2. The Full Industrial Relations Court erred in not finding
    that the learned Industrial Magistrate misdirected himself
    on the onus of proof when making his findings of fact.

3. The Full Industrial Relations Court erred in not finding
    that the learned Industrial Magistrate overall misdirected
    himself as to the correct application of the onus of proof.
     ...

6. That the Full Industrial Relations Court erred in
    finding that on the facts as found by the learned Industrial
    Magistrate that the applicant did not ensure so far as if
    reasonable (sic) practicable that the employee at work was
    safe from injury and risk to health."

18. Grounds 4 and 5 of the Notice of Appeal were not pursued in this Court.

19. In or about August of 1989, that is about two years prior to the alleged offence, a minute of a production safety meeting was created which recorded that workers had objected to the carrying out of this work, claiming that the method of work was unsatisfactory and suggesting that a lifting device be installed, and in particular it was suggested that an electric endless chain be installed.

20. Coincidentally, at or about the same time, the management of the plant had already decided to discontinue the process which required the mixing of the ammonium sulphate. The process was not revived again until about April or May of 1991 and from that time until the date of the alleged offence the work had to be carried out in the manner which I have described.

21. Shortly after the process was reintroduced Mr Morrish, the worker referred to in the particulars, became concerned about the work practice and he voiced that concern in monthly team meetings of his crew. In mid June he raised the matter with Sister Kennedy, the occupational nurse at the plant. She advised him that he ought to ensure that his concerns were minuted. She also indicated to him at that time that she would support his objection to the work practice.

22. Apparently in July 1991 the worker approached Mr Thurlings, a maintenance supervisor, complaining about the same work practice. The learned Industrial Magistrate found that Mr Thurlings did not dispute that the practice gave rise to a risk and that Mr Thurlings immediately accepted the responsibility of doing something about the practice.

23. Specifically, Mr Thurlings promised to have Mr Bob Widdison, the maintenance foreman, inspect the site and examine the system of work. In response to Mr Thurlings' request, Mr Widdison did just that, and his evidence before the learned Industrial Magistrate was to the effect that he understood that the lifting of the bags of ammonium sulphate was a problem and that alternatives would have to be considered.

24. The evidence was that the maintenance supervisor, Mr Thurlings, after the matter had been raised by Mr Morrish's complaint, took the matter to be his responsibility and further considered that he had sufficient delegated authority to take whatever action was necessary.

25. After that time consideration was given to purchasing the ammonium sulphate in smaller and lighter bags and steps were taken with the supplier of the ammonium sulphate to implement such a decision. The fact of the matter, however, is that by the date of the alleged offence, which was the date upon which Mr Morrish suffered an injury to his back, such a practice had not been put in place and as at the date of the offence the work practice was still as I have stated it to be.

26. The learned Industrial Magistrate found that the work practice carried with it an obvious risk of back strain in that the requirement to lift unaided a 50 kilogram bag of ammonium sulphate carried with it a real risk of injury. He made that finding, as he said, upon this basis:
    "Perhaps the most fundamental fact is, simply, that every
    informed person who looked at the situation unhesitatingly
    accepted that it was an unreasonably heavy load for one man
    to lift without assistance."

27. It seems to me that that finding was supported by the evidence of Mr Morrish, and was further supported in particular by the evidence of Mr Roesler, an inspector employed by the Department of Labour. That gentleman had 14 years experience with the department and in particular held qualifications in occupational hazard management from the College of Advanced Education. He was also an Associate in Risk Management with the American Institute of Insurance. He had a number of other relevant qualifications which I need not mention, but he was, in my opinion, a person qualified to pass an opinion upon the risk of injury generated by the work practice. His opinion was that the lifting of a bag of weight of 50 kilograms was outside the lifting capacity of a worker.

28. It was open to his Honour to accept that evidence supported, as it was, by the witness' qualifications and experience. But, in any event, ordinary commonsense would have told his Honour that to lift unaided a 50 kilogram bag of material could carry with it and, in fact, would carry with it, some risk of injury.

29. His Honour did not expressly say that he found that element of the offence proved beyond reasonable doubt but, as I have already recorded, his Honour warned himself as to the appropriate burden of proof and of the appropriate standard of proof and, in my opinion, in those circumstances did not need to repeat each time he made a finding that the finding was being made upon the basis of satisfaction beyond reasonable doubt.

30. Having made that finding, his Honour then moved to the fifth and sixth elements and he said this:
    "As to the element that there was one or more measures that
    the employer could have taken to reduce or to eliminate that
    risk, and which it did not take, that has been amply
    demonstrated. The prosecution points particularly to the
    failure to install a mechanical lifting device and the
    failure to provide adequate numbers for the job, and it
    seems to me that it has fully demonstrated both failures in
    the evidence. The plain fact is that, despite the lapse of
    two months (or more than three if the trials in May are
    included) in which the workers were required to lift these
    bags, the defendant has done nothing at all to lighten their
    burdens. The emphasis here must be on the word `done'. As
    late as midnight on 16th August, the last day specified in
    the particulars, the most that could be said for the
    defendant was that it had had good intentions to do
    something about it, some indefinite time in the future. At
    that time, nothing had been settled and nothing had been
    achieved."

31. The learned Industrial Magistrate then found that the period over which three workers had been subjected to unnecessary risk of injury was unreasonable and excessive and that the risk of injury could have been ameliorated, either by the use of lighter bags, by team lifting, or by mechanical instrument.

32. His Honour then determined that if those procedures had been adopted, any of those measures would have eliminated or at least reduced the risk of injury to the employee. In making those findings, his Honour was satisfied beyond reasonable doubt on the fifth matter cast upon the prosecution.

33. That conclusion, in my opinion, with respect, must be right. The evidence of Mr Roesler was that a mechanical hoist could be employed or better lifting techniques could have been used. There was really, on the evidence, no dispute about that. It would follow that if the work practice in lifting a 50 kilogram bag involved a risk of injury, to employ by direction two persons to lift such a bag would reduce, if properly employed, eliminate the risk. Clearly a mechanical hoist, if employed, would or should, if it had been used correctly, eliminate the risk.

34. The reduction in the size and weight of the bags would also be another way to reduce the risk. The appellant itself recognised that to be so and, in recognising that, had been negotiating with the suppliers of the material to purchase bags of a lesser weight. The appellant, however, had not achieved that result in what was a relatively long time frame.

35. In my opinion, therefore, the finding of the learned Industrial Magistrate was, in the circumstances, inevitable. The learned Industrial Magistrate also found proved the sixth matter. It was the fact that lighter bags could have been employed, but too little had been done over too long a period to obtain lighter loads of ammonium sulphate. The concept of team lifting was self-evident. It only needed an instruction and a requirement that the instruction be observed that each employee would not lift a 50 kilogram bag without the assistance of some other worker. A mechanical hoist, as the respondent had demonstrated, was available on the premises, and its very availability was demonstrated by the fact that the hoist was made available on the same day and immediately after the employee mentioned in the particulars suffered injury.

36. In those circumstances the hoist would have been an adequate and practical lifting device and it was at all times readily available, and even if only as a short term expedient, the installation of a hoist would have been a cheap, effective and practical measure that the appellant might have and should have taken to alleviate the risk of injury. Again, in my opinion, the evidence was more than sufficient to support those findings beyond reasonable doubt in relation to the sixth element.

37. The appellant claimed in its first appeal to a single judge in the Industrial Court, and its later appeal to the Full Industrial Relations Court heading the appeal to this Court, that the magistrate expressed in his reasons statements which would suggest that the onus of proof was in some way reversed. Some of the expressions of his Honour may have been somewhat infelicitous.

38. At page 20 of his Honour's reasons he said in discussing the conflicting evidence of Mr Harris and Mr Dalling:
    "I am not satisfied, however, even on the balance of
    probabilities that I can accept Mr Harris' evidence and
    reject that of Mr Dalling."

39. That might suggest, it has been argued in this Court, that his Honour misunderstood the appropriate standard of proof and perhaps, in the circumstances in which he was discussing the evidence, reversed the onus of proof. However, on a reading of the evidence of both of those men, it does not seem to me that the Industrial Magistrate needed to make a finding as to which of the witnesses ought to have been accepted because whatever evidence was accepted, it seems to me, would have supported the case put by the prosecution because the evidence of both of the men established that there was a risk of injury in the work practice that was employed.

40. There are other matters of complaint made by Mr David in relation to the learned Industrial Magistrate's reasons, but I do not at this stage intend to pause to comment upon all of those matters because, in my opinion, the Industrial Magistrate determined properly when he first instructed himself and warned himself where the burden of proof lay and the appropriate standard of proof.

41. As I have already said, there was no contest as to his Honour's findings as to the elements of the offence and, in my opinion, whilst some criticisms can be made of the method of expression by the learned Industrial Magistrate, in the end no criticism can be made of his approach as to the burden and standard of proof and his findings of facts and the application of those facts to the elements of the offence which, as I say, were not in dispute. In my opinion, the appeal should be dismissed.

JUDGE3 BOLLEN J I too agree.