Dinko Tuna Farmers Pty Ltd v Markos
[2007] SASC 166
•18 May 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
DINKO TUNA FARMERS PTY LTD v MARKOS
[2007] SASC 166
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Layton and The Honourable Justice Kelly)
18 May 2007
INDUSTRIAL LAW - INDUSTRIAL SAFETY, HEALTH AND WELFARE - SOUTH AUSTRALIA - OCCUPATIONAL HEALTH AND SAFETY LEGISLATION
Appeal against conviction - defendant convicted of breaching section 19(1) of the Occupational Health Safety and Welfare Act 1986 - whether section 19(1) incorporates, as elements of the statutory offence, the common law requirements of duty of care and breach or whether the elements of the offence are found solely within the statutory provisions - whether the defendant had ensured its employee's safety so far as was reasonably practicable - Held: appeal dismissed - the elements of the offence created by section 19(1) are to be found within the statutory provision - the defendant had not ensured its employee's safety so far as was reasonably practicable.
WORDS AND PHRASES CONSIDERED/DEFINED
"reasonably practicable"
DINKO TUNA FARMERS PTY LTD v MARKOS
[2007] SASC 166Full Court: Gray, Layton and Kelly JJ
GRAY J.
This is an appeal by Dinko Tuna Farmers Pty Ltd, the defendant and appellant, from a decision of the Full Court of the Industrial Relations Court. The Full Court reversed the decision of a single Judge and restored the decision of an Industrial Magistrate. The Full Court restored the conviction of the defendant of a breach of section 19(1) of the Occupational Health Safety and Welfare Act 1986 (SA).
The defendant requires the permission of this Court to bring this appeal.[1] As the submissions on the application for permission would involve the development of the same arguments to be presented on the appeal, the Court directed that full submissions be made, reserving to the conclusion a consideration of the application for permission.
[1] Fair Work Act 1994 (SA) section 191(1)(b).
A complaint was issued by Ian Markos, Inspector and Public Officer, Department for Administrative and Information Services. The defendant was charged on complaint that:
On the 19th day of June 2002, at or near Port Lincoln in the said State, being an employer, failed to ensure so far as was reasonably practicable that its employee, namely Christopher Grose, was, whilst at work, safe from injury and risks to health; contrary to section 19(1) of the Occupational Health Safety and Welfare Act, 1986.
The following particulars were provided:
At all material times the defendant carried on business as a tuna farmer.
At all material times Christopher Grose (“the employee”) was employed by the defendant as a deckhand aboard the vessel Dageraad (“the vessel”).
On 19 June 2002 the employee fell overboard whilst cleaning the deck of the vessel whilst it was underway.
The defendant failed to provide and maintain so far as was reasonably practicable a safe system of work in that:
it failed to provide and maintain a system for ensuring the employee wore a personal flotation device at all times whilst the vessel was underway;
it failed to provide and maintain a system for ensuring the sea door on the port side of the vessel was in place and not open; and
it failed to provide and maintain a system for ensuring at least two employees were always in sight of each other whilst the vessel was underway.
The defendant failed to provide such information, instruction, training and supervision as was reasonably necessary to ensure that the employee was safe from injury and risks to health in that the employee was not adequately supervised whilst working on board the vessel.
The defendant operated a tuna farming business. This operation was conducted at sea. Tuna were encased in large nets in the ocean. They were fed daily. The defendant would send vessels from Port Lincoln laden with frozen pilchards. The vessels would moor adjacent to the netted areas and their crew would place frozen blocks of pilchards into feeders. The pilchards would defrost and slowly seep out for consumption by the tuna.
One of the vessels involved in the operation was The Dageraad. Its skipper was Joel Freeland and one of its crew was Christopher Grose. The Dageraad had a sea door, that is, a door on the side of the deck of the vessel that when open permitted direct access to the sea.
Mr Grose was about 20 years of age when he commenced working for the defendant as a deckhand. As at 19 June 2002 he had been with the defendant for about five weeks.
On 19 June 2002, after completing the unloading of pilchards at six tuna farms on the day of the incident, Mr Grose was hosing down the deck using the deck hose. He was alone on the deck. He was not wearing a life jacket. The weather was choppy. Whilst he was hosing down the deck the vessel got underway. Immediately prior to falling overboard he was kneeling over attempting to pick up a pilchard which had fallen in between the hydraulic lines. Apparently a wave hit the side of the vessel which caused the vessel to list. Mr Grose lost his balance. It is conjecture as to whether he fell through the open sea door. Fortunately for Mr Grose, another boat was in the vicinity. By chance, one of its crew spotted him in the water and he was rescued unharmed. The others on board The Dageraad were unaware at the time that Mr Grose had gone overboard. They only learnt of his absence following his subsequent rescue.
Against this background, it was the complainant’s case that an inexperienced employee, required to work alone on the deck of a moving vessel, fell overboard through an open sea door, unnoticed by any crew member, without a personal flotation device. The complainant’s case was that there were numerous reasonably practicable measures available to the defendant that could have been taken but were not taken, which would have reduced the risk to Mr Grose.
The complainant, in response to the defendant’s argument, maintained the alternative position, that if relevant, it had proved beyond reasonable doubt that the defendant failed to discharge its duty of care to its employee. In this respect it was the complainant’s case that there was a foreseeable risk that a person required to work on the deck of a vessel underway might fall overboard. It was reasonably foreseeable that the risk was a risk of death from drowning. Further, that any reasonable employer would have guarded against the risk.
It was the complainant’s case that the risk of death from drowning could be reduced if an employee was wearing a personal flotation device. While the defendant’s vessel was equipped with personal flotation devices, the defendant failed to provide a system of work that required employees to wear personal flotation devices on deck while the vessel was underway. This requirement was a reasonably practicable measure. It was also the complainant’s case that another employee should have been on the deck with a line of sight to Mr Grose at all times. Again, this would have reduced the risk of drowning in the event that Mr Grose fell overboard.
It was the contention of the defendant throughout the proceedings that the offence created by section 19(1) had imported into it the common law requirements of duty and breach. It was submitted that the complainant had to prove beyond reasonable doubt that the incident that occurred was reasonably foreseeable in accordance with the test formulated by Mason J in Wyong Shire Council v Shirt.[2] It was said that the complainant had failed to do so. It was further said that the complainant had to prove beyond reasonable doubt that the conduct of the defendant fell below the conduct that would be expected of a reasonable employer in the circumstances of the defendant. Again it was claimed that the complainant had failed in this endeavour. It was further contended, to express the matter in another way, that the complainant had to exclude the reasonable hypothesis that this particular incident was not reasonably foreseeable and to exclude the reasonable hypothesis that a reasonable employer would not have acted in a different way from the defendant. It was claimed that these hypotheses had not been excluded. The defendant relied on evidence said to establish a low risk of a person falling overboard by reference to it being a rare occurrence over 15 years of tuna farming. The tuna industry practice it was claimed was that flotation devices were not worn as they impeded certain work. This was particularly true of older style flotation devices.
[2] Wyong Shire Council v Shirt (1980) 146 CLR 40.
Both parties submitted that, whatever view was taken of the elements of a section 19(1) offence, on the evidence before the Magistrate, each was entitled to a verdict in their favour.
The Magistrate conducted a trial following the defendant’s plea of not guilty. He reached the conclusion that the defendant was guilty, recorded a conviction and imposed penalty. He published considered reasons for his decision.
The defendant appealed to a single Judge of the Industrial Relations Court. The Judge concluded that the appeal should be allowed, the conviction set aside, and the complaint dismissed. His conclusion was in the following terms:
[T]he evidence could not substantiate a finding beyond reasonable doubt that the [defendant] did not do all that was reasonably practicable for it to do so as to ensure that Mr Grose whilst at work on 19 June 2002 was safe from injury and risk to his health.
The complainant appealed to the Full Court of the Industrial Relations Court. By majority, that Court allowed the appeal, set aside the orders of the single Judge and reinstated the orders of the Magistrate. The majority in the Full Court concluded:
There was evidence upon which the Magistrate was entitled to find beyond reasonable doubt that alternative measures were available to [the defendant] which it did not take in relation to each count, and that implementation of those measures was reasonably practicable and would have made a difference by reducing the risk to Mr Grose. Further, there was evidence which could properly form the basis of a finding that such instruction “as was reasonably necessary” to ensure that Mr Grose was safe from risk was not given by Mr Freeland.
Section 19(1) of the Occupational Health Safety and Welfare Act
A primary issue to be resolved on this appeal is the determination of the elements of the offence created by section 19(1) of the Occupational Health Safety and Welfare Act. Relevantly that section provides:
An employer must, in respect of each employee employed or engaged by the employer, ensure so far as is reasonably practicable that the employee is, while at work, safe from injury and risks to health and, in particular –
(a) must provide and maintain so far as is reasonably practicable –
(i) a safe working environment;
(ii) safe systems of work;
(iii) plant and substances in a safe condition; and
(b)must provide adequate facilities of a prescribed kind for the welfare of employees at any workplace that is under the control and management of the employer; and
(c)must provide such information, instruction, training and supervision as are reasonably necessary to ensure that each employee is safe from injury and risks to health.
More particularly the issue is whether section 19(1), as the defendant contended, incorporates, as elements of the statutory offence, the common law tests of duty of care and breach or whether, as the complainant contended, the elements of the offence are found within the statutory provisions.
The construction of section 19(1) of the Occupational Health Safety and Welfare Act was referred to by this Court in CSR Ltd v Stevenson.[3] The Court proceeded on the basis that the elements of section 19 were as described by the Magistrate under appeal. That description of the elements was in the following terms: [4]
-that the defendant was an employer;
-that the defendant employed the worker;
-that the defendant required the worker to do the work particularised;
-that the work entailed a risk to the health or the safety of the worker arising from the system of work employed;
-that there was or were one or more measures that the defendant did not take which, if taken, would have eliminated or reduced that risk to his health and safety; and
-that measures or those measures was or were reasonably practicable at the time stipulated in the particulars and the circumstances revealed by the evidence.”
The Court proceeded without any separate or further consideration of the elements of the offence provided for by section 19(1).
[3] CSR Ltd v Stevenson (1995) 184 LSJS 204.
[4] CSR Ltd v Stevenson (1995) 184 LSJS 204 at 205..
This Court had occasion to further consider section 19(1) of the Occupational Health Safety and Welfare Act in Softwood Holdings Ltd v Stevenson.[5] A worker had died when injured by the collapse of a stack of timber. A section 19(1) complaint was laid. The Industrial Court decided that a subjective state of mind was not an essential ingredient of the offence. The appellant challenged this conclusion arguing that actual foresight by the appellant of the risk of injury or impairment of safety was an essential ingredient of the offence prescribed by section 19(1). The Court did not appear to have been referred to the earlier CSR decision. The Court did not critically examine the elements comprising a section 19(1) offence. Rather, the debate was about the need for actual foreseeability in the particular factual circumstances.
[5] Softwood Holdings Ltd v Stevenson (1996) 188 LSJS 482 at 484.
Prior J dismissed the appeal and rejected the appellant’s submission. When addressing the construction of the section, Prior J commented:[6]
I agree with the conclusions of the Full Industrial Relations Court. No subjective state of mind is an essential ingredient of the offence prescribed by s19. ... The purpose of this legislation is plainly to compel the taking of preventive measures to avoid the possibility that without deliberate conduct on the employer’s part, the external elements of the offence might occur.
Further support for the construction affirmed is derived from the language of s59. By that section, a person is guilty of an aggravated offence if that person contravenes sections including s19, “knowing that the contravention was likely to endanger seriously the health or safety of another” or if that person was “recklessly indifferent as to whether the health or safety of another was so endangered”.
Prior J then addressed the particular circumstances before the Court and observed:[7]
The respondent had to prove beyond reasonable doubt that the appellant was an employer, that it employed Pasin, that Pasin was exposed to a foreseeable risk of injury and that there were one or more measures which the appellant may have practically taken, but did not take, which would have eliminated or ameliorated that risk. The risk must be a foreseeable risk because the obligation upon the employer is to ensure the safety of the employee, “so far as is reasonably practical”. The evidence clearly established beyond reasonable doubt that Pasin had been exposed to a foreseeable risk of injury. Indeed the evidence justified a finding that the appellant foresaw the risk of injury arising from the system of work actually in place. Nevertheless, all that was necessary for the prosecution to prove was that the system used by the appellant on the relevant day was unsafe and that, as a result, there was a foreseeable risk to an employee. The system of work in this case was one involving a foreseeable risk that the timber stacks would be unstable and that they might fall and cause injury. The risk was foreseeable, even if it was unlikely or improbable: Council of the Shire of Wyong v Shirt (1990) 146 CLR 40 at 47-48. The evidence before the magistrate was to the effect that the stack was unstable, with everyday events likely to cause injury. The system of work gave rise to a foreseeable risk of injury regardless of the reason for the collapse on this occasion. The stacking of the timber caused a foreseeable risk of collapse as a result of a combination of everyday events. The appellant’s liability was established, even if it was not reasonably possible to “envisage the precise concatenation of circumstances” that gave rise to Mr Pasin’s death.[8] The contrary submission put below and before this Court is incorrect. The mere fact that the way in which an injury happened could not be anticipated does not exclude liability.[9] The charge was proved beyond reasonable doubt. The appeal must be dismissed.
[6] Softwood Holdings Ltd v Stevenson (1996) 188 LSJS 482 at 484.
[7] Softwood Holdings Ltd v Stevenson (1996) 188 LSJS 482 at 484-485.
[8] Hughes v Lord Advocate [1963] AC 837 at 853
[9] Hughes v Lord Advocate [1963] AC 837 at 846
Doyle CJ agreed in substance with the reasons given by Prior J and added:[10]
I agree with the conclusion of the Full Court of the Industrial Relations Court to the effect that the method of stacking the packs of timber involved factors which had the potential to render a particular stack of timber unstable, although it could not be said that every stack of timber would be unstable. On this point I agree with the substance of what the Full Court said at pages 10-11 of its reasons. To my mind, it follows from that that the method of stacking involved a foreseeable risk of injury to workers.
...
In short, the system of stacking was one which was such that there was a foreseeable risk that a stack of timber would be unstable or would be rendered unstable by the occurrence of an every day event. It was not necessary to prove beyond reasonable doubt why the particular stack which collapsed and killed the worker did collapse. It was sufficient to prove that the method adopted gave rise to a foreseeable risk of injury as a result of the collapse.
[10] Softwood Holdings Ltd v Stevenson (1996) 188 LSJS 482 at 482.
Mullighan J agreed with the reasons of Prior J and, relevantly to the present discussion, spoke of “the required element of foreseeability”.
An examination in the present case of the reasons of the Magistrate, the Judge at first instance and the Judges on appeal in the Industrial Relations Court reveals that close attention was paid to, and differing views were taken of, the observations in the Softwood Holdings case. It is those differences that have given rise to this appeal and the existence of an important point of law - the proper construction of section 19(1).
In the present case, the majority in the Full Court of the Industrial Relations Court – Hannon and Farrell JJ – reached their decision on a consideration of the defendant’s submission at its highest, that is, through the importation of common law requirements. However, in doing so, their Honours observed:[11]
Although we adopt the approach of the [complainant] by first considering whether there was a breach of the common law duty, we should not be understood to be endorsing a methodology whereby an alleged breach of the statutory duty under s 19 of the Act is determined by specific reference to common law principles. Whether or not there is a difference between the common law duty and the statutory duty, an alleged breach of the statutory duty must be determined by reference to the words used by the statute. The question must always be whether the employer has failed “to ensure so far as is reasonably practicable” the safety of the employee.
[11] Markos v Dinko Tuna Farmers Pty Ltd [2006] SAIRC 89 at [117].
Later in their reasons, the majority returned to the question of the duty imposed by section 19(1) and made some brief comments without expressing any concluded view:[12]
Given the above conclusions, we do not propose to express a concluded view on this issue but we do wish to add some brief comments.
…
We are of the view that the general issue as to whether the statutory duty of an employer under s 19 of the Act is more extensive than that of an employer at common law remains unsettled.
The focus in this case involves the duty under s 19 of the Act. It may be, as the [complainant] contends, that if s 19 imposes on [the defendant] a stricter duty than the common law duty, the practices of employers in the tuna farming industry have little or no relevance to the issue as to what is “reasonably practicable”. However, as we consider that the decision of the Magistrate should stand having regard to the common law standard, there is no need to decide this issue.
The uncertainty on this issue highlights the importance of the comment made earlier in these reasons that any alleged breach of the statutory duty should be considered by reference to the duty as set out in the words of s 19, not by reference to the Shirt calculus. It is possible that in some circumstances the statutory duty to “ensure” the safety of an employee so far as is reasonably practicable, extending as it does to circumstances where a risk of injury or harm may give rise to a breach, whether or not there is consequent damage, is more extensive than at common law. Further, over the last few years the common law duty has been subject to statutory modification in various states of Australia to differing degrees. Whilst long standing common law principles should not alter as a result, it may be that, even if there is no difference in the extent of the respective duties now, there will be a gradual divergence between the application of common law principles due to the influence of statutory modification and the application of the statutory duty.
[12] Markos v Dinko Tuna Farmers Pty Ltd [2006] SAIRC 89 at [220], [227] –[229].
The dissentient – Jennings SJ – noted that the prosecutor contended that section 19(1) imposed a higher duty on an employer than did the common law. In rejecting this submission, the Senior Judge reasoned:[13]
As to what constitutes a breach of s 19 of the Act, without repeating them I agree with and adopt the submissions of [counsel for the defendant] and the reasoning, authorities referred to and conclusion of the learned Judge set out earlier herein, ie s 19 equates to, implements or restates the common law duty of care. That conclusion is supported by the following authorities: BHAS v Stevenson ; Softwood Holdings Ltd v Stevenson; Zelling J in Smith v Elliott Bros Pty Ltd; Lander J in CSR t/as CSR Wood Panels v Stevenson; McCusker J in Fielders Steel Roofing Pty Ltd v Moore and Doyle CJ in Slivak (1). [Counsel for the complainant] may be correct in submitting that Slivak (2) has no direct application to the case at bar, however it is arguable that Slivak (2) at least implicitly supports the conclusion I have reached, because of the majority’s failure to reject the passage of Doyle CJ (at 325) and because of their apparent rejection, or at the very least their non-acceptance of the appellant’s submissions in that case, which are not dissimilar to those of [counsel for the complainant’s] primary submissions in this case.
...
That being so and in reliance on the authorities I have already referred to, I do not accept that s 19 imposes that higher duty.
[13] Markos v Dinko Tuna Farmers Pty Ltd [2006] SAIRC 89 at [78], [105] (footnotes omitted).
Section 19(1) of the Occupational Health Safety and Welfare Act imposes a statutory obligation on an employer with respect to matters affecting the health and safety of its employees. The duty is a statutory duty. The scope and standard of the duty are defined by the statute. The section, by its express terms, provides that:
-the duty is owed only by employers;
-it is owed in respect of each employee employed or engaged by the employer, while that employee is at work;
-the duty is to keep the employee safe from injury and risks to health;
-the standard is to “ensure [employee safety] so far as is reasonably practicable”.
The defendant maintains that the standard necessarily requires identification of the reasonably practicable measures that would, in the circumstances, keep an employee safe. The employer is required to take the reasonably practicable measures so identified.
In the absence of an express definition of “reasonably practicable”, the correct approach is to give those words their ordinary meaning. Insofar as there may be ambiguity, section 22 of the Acts Interpretation Act 1915 (SA) provides:
(1)Subject to subsection (2), where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
(2) This section does not operate to create or extend any criminal liability.
The evident purpose of section 19(1) of the Occupational Health Safety and Welfare Act is to compel the taking of preventative measures to ensure worker safety. The provision is designed to protect, amongst others, persons in the position of Mr Grose. The obligation on the employer is to ensure safety. That requirement is moderated by the limitation “so far as is reasonably practicable”.
In Chugg v Pacific Dunlop Ltd,[14] Dawson, Toohey and Gaudron JJ when addressing the Victorian counterpart of section 19(1) commented:[15]
The informant's argument also relied on the object of the Act, namely, the promotion of occupational health and safety, and on the command in s 35(a) of the Interpretation of Legislation Act 1984 (Vict) that "a construction that would promote the purpose or object [of the Act] ... shall be preferred to a construction that would not promote that purpose or object". A similar consideration was taken into account in Nimmo. Lord Guest stated of the provision there under consideration:
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.
The choice directed by s 35(a) of the Interpretation of Legislation Act is not as to the construction which "will best achieve" the object of the Act. Rather, it is a limited choice between "a construction that would promote the purpose or object [of the Act]" and one "that would not promote that purpose or object". …
The decision in Nimmo also rested in part on a discerned legislative intention to impose a duty different from that arising at common law. Thus, Lord Guest considered that it was not intended 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". And Lord Upjohn stated:
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. He must know and be able to give the reasons why he considered it was impracticable for him to make the 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.
[14] Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249.
[15] Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 261-262 (footnotes omitted).
In Slivak v Lurgi (Australia) Pty Ltd,[16] the High Court considered the interpretation of section 24(2a)(a) of the Occupational Health Safety and Welfare Act. Section 24 addresses the safety of construction workers. Certain of its provisions are in comparable terms to section 19(1). In particular, section 24(1)(a) placed an obligation on a designer “to ensure so far as is reasonably practicable that plant is designed ... so as to be safe”.
[16] Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304.
The members of the High Court differed in their approach to the resolution of the appeal. Gleeson CJ, Gummow and Hayne JJ took the view that section 24(1)(a) did not cast a duty on the designer to address the safety of those required to erect the particular structure. As a result, their Honours were able to dispose of the appeal without a detailed consideration of the meaning of the phrase “ensure so far as is reasonably practicable that plant is designed… so as to be safe”.
Gaudron J took a different view of the construction of section 24(1)(a). Her Honour considered that the obligation of the designer did extend to ensuring safety of those involved in the construction of the structure. As a result Gaudron J came to consider in some detail the meaning of “ensuring safety”. Callinan J, although agreeing with the joint judgment took the opportunity to discuss the proper interpretation of the statutory provisions and in particular the provisions dealing with the ensuring of safety. In the result there are relevant and helpful observations concerning the issues that this Court has to determine.
It is convenient to address those observations immediately before coming to further discuss the construction of section 19(1). Gaudron J observed:[17]
[17] Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304 at [51]-[54].
The statutory duty imposed by s 24(2a)(a) of the Act differs from the common law duty of care in at least two important but related respects. The first significant difference between the statutory duty and the common law duty of care is that s 24(2a)(a) imposes a duty to ensure the safety of construction workers, not simply to prevent a foreseeable risk of injury to them. The statutory duty is a duty to protect against all risks to construction workers, if that is reasonably practicable. In the words of Lord Upjohn in Nimmo v Alexander Cowan & Sons Ltd,[18] the duty is to make the structure "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".
The second significant difference between the duty imposed by s 24(2a)(a) of the Act and the common law duty of care is closely related to the first. Once it is accepted that the statutory duty is to design a structure that is as safe as reasonably practicable for construction workers, it follows that the designer is required to incorporate safety features in the design to ensure the safety of those workers if those features are reasonably practicable. That imposes a much higher standard than the exercise of reasonable care in designing a structure.
The words "reasonably practicable" have, somewhat surprisingly, been the subject of much judicial consideration.[19] It is surprising because the words "reasonably practicable" are ordinary words bearing their ordinary meaning. And the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in the light of all the facts. Nevertheless, three general propositions are to be discerned from the decided cases:
.the phrase "reasonably practicable" means something narrower than "physically possible" or "feasible";[20]
.what is "reasonably practicable" is to be judged on the basis of what was known at the relevant time;[21]
.to determine what is "reasonably practicable" it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk.[22]
For present purposes, what is reasonably practicable has to be considered at the time the tower was designed. Moreover, when considering what is reasonably practicable for the purposes of s 24(2a)(a) of the Act, it is relevant to consider that, in the ordinary course, the designer of a structure will have little or no control with respect to the work practices or the workmanship of those who undertake its construction. And it is also relevant to consider what may reasonably be expected of those persons. However, as will later appear, these are not the sole considerations.
[18] Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107 at 126. See also Marshall v Gotham Co Ltd [1954] AC 360 at 375, per Lord Tucker.
[19] See, eg, Ryan v Central Norseman Gold Corporation (NL) (1964) 111 CLR 327 at 331, 332, per Windeyer J; Coltness Iron Co v Sharp [1938] AC 90; Edwards v National Coal Board [1949] 1 KB 704; McCarthy v Coldair Ltd [1951] 2 TLR 1226; Marshall v Gotham Co Ltd [1954] AC 360; Austin Rover Ltd v Inspector of Factories [1990] 1 AC 619; R v Behlen-Wickes Co (1980) 4 Man R (2d) 119 (Manitoba CA); Buchanans Foundry Ltd v Department of Labour [1996] 3 NZLR 112; Auckland City Council v NZ Fire Service [1996] 1 NZLR 330.
[20] See, eg, Edwards v National Coal Board [1949] 1 KB 704 at 712, per Asquith LJ; Marshall v Gotham Co Ltd [1954] AC 360 at 377, per Lord Keith of Avonholm; Auckland City Council v NZ Fire Service [1996] 1 NZLR 330 at 337-338, per Gallen J.
[21] See, eg, Edwards v National Coal Board [1949] 1 KB 704 at 712, per Asquith LJ; Marshall v Gotham Co Ltd [1954] AC 360 at 370, per Lord Oaksey; at 377, per Lord Keith of Avonholm; Buchanans Foundry Ltd v Department of Labour [1996] 3 NZLR 112 at 118, per Hansen J.
[22] See, eg, Coltness Iron Co v Sharp [1938] AC 90 at 94, per Lord Atkin; Edwards v National Coal Board [1949] 1 KB 704 at 710, per Tucker LJ; at 712, per Asquith LJ; at 715, per Singleton LJ; McCarthy v Coldair Ltd [1951] 2 TLR 1226 at 1228, per Denning LJ; at 1230, per Hodson LJ; Marshall v Gotham Co Ltd [1954] AC 360 at 370, per Lord Oaksey; at 373, per Lord Reid; Austin Rover Ltd v Inspector of Factories [1990] 1 AC 619 at 625, per Lord Goff of Chieveley; at 635-636, per Lord Jauncey of Tullichettle; Auckland City Council v NZ Fire Service [1996] 1 NZLR 330 at 338, per Gallen J.
Relevantly, Callinan J commented:[23]
[23] Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304 at [87]-[89], [92].
I turn to Mr Slivak's submission made in this Court in reliance on the statutory cause of action. I would accept that the sub-section certainly does impose a higher duty upon a designer than the common law. The words "must ensure" produce that consequence.[24] However the statutory duty is still not an absolute one. What the designer must do is to ensure that the safety of erectors is protected "so far as is reasonably practicable".
The phrase "reasonably practicable" has been construed in the United Kingdom. In Marshall v Gotham Co Ltd[25] Lord Oaksey said: "what is `reasonably practicable' depends upon a consideration whether the time, trouble and expense of the precautions suggested are disproportionate to the risk involved."[26]
Lord Reid put the matter this way:[27]
" ... I do not find it helpful to consider whether this statutory duty is in every case the same as an employer's common law duty. I think it enough to say that if a precaution is practicable it must be taken unless in the whole circumstances that would be unreasonable."
Any structure that can be designed to be erected and to function properly, and in an absolutely safe manner may be described as being capable of being designed as a matter of practicability. But the test is not one of mere practicality: it is one of "reasonable practicability". The reference to disproportionality and risk, by Lord Oaksey, and to what might be unreasonable in the whole circumstances by Lord Reid, involves, and in my respectful opinion, rightly so, the importation of notions of expense, time and trouble, and some evaluation by the designer of the extent to which a reasonable fabricator and erector might or might not depart from the design and erection procedures.
...
Mr Slivak also argued that Lurgi bore the onus of showing that it had complied with the Act. He invited the Court to adopt the decision, and reasoning of the majority, of the House of Lords (Lords Guest, Upjohn and Pearson, Lords Reid and Wilberforce dissenting) in Nimmo v Alexander Cowan & Sons Ltd[28] and Kingshott v Goodyear Tyre & Rubber Co Australia Ltd [No 2][29] (Kirby P and Priestley JA; McHugh JA dissenting on this point), in which it was held that the employer carried the onus of proving compliance with the provision.
[24] cf the reasoning of Pincus and Davies JJA and Ambrose J in Hardy v St Vincent's Hospital Toowoomba Ltd [2000] 2 Qd R 19 at 21.
[25] Marshallv Gotham Co Ltd [1954] AC 360.
[26] Marshallv Gotham Co Ltd [1954] AC 360 at 370.
[27] Marshallv Gotham Co Ltd [1954] AC 360 at 373.
[28] Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107.
[29] Kingshott v Goodyear Tyre & Rubber Co Australia Ltd [No 2] (1987) 8 NSWLR 707.
In Edwards v National Coal Board,[30] Asquith LJ observed that the phrase “reasonably practicable” was a matter narrower than “technical feasibility”: [31]
“Reasonably practicable” is a narrower term than “physically possible” and seems to me to imply that a computation must be made by the owner, in which the quantum of the risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other; and that if it be shown that there is a gross disproportion between them - the risk being insignificant in relation to the sacrifice - the defendants discharge the onus on them.
[30] Edwards v National Coal Board [1949] 1 KB 704.
[31] Edwards v National Coal Board [1949] 1 KB 704.
“Reasonably practicable” must also be judged as at the time of the matter alleged, as put by Lord Keith in Marshall v Gotham Co Ltd:[32]
But it is not the precautions in themselves which have to be reasonably practicable. It is the observance of the precautions that it is required so far as may be reasonably practicable. That calls, I think, for a consideration of the whole circumstances at the time of the accident, an assessment, an assessment of the situation, as it had been put, at the material time.
and later :[33]
There is, in my opinion, no general rule or test that can safely be relied on for measuring the discharge of such a duty.
[32] Marshall v Gotham Co Ltd [1954] AC 360.
[33]Marshall v Gotham Co Ltd [1954] AC 360 at 378.
What is “reasonably practicable” is a question of fact for the trial Magistrate. Complaints before the Industrial Court and Magistrates Court under section 19(1) typically may be expected to involve consideration of matters such as: the magnitude of the potential harm; the likelihood that harm will arise; the availability of any measures that could be taken to eliminate or minimise the risk; the cost and time involved in those measures being taken and their effectiveness in addressing the risk.
The construction of section 19(1) is assisted by noting that the words “so far as is reasonably practicable”, modify the verbs “provide and maintain”. It is those verbs that provide and create the obligation. The obligation imposed by section 19(1) is not an absolute obligation. The words of qualification also prescribe the measure of the precautions to be taken to ensure “that the employee is, while at work, safe from injury and risks to health”. These observations draw directly on the reasoning of Brennan J in Chugg v Pacific Dunlop Ltd.[34]
[34] Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 251.
Liability under section 19(1) should be determined by reference to the terms of the statutory provision. The statute obliges an employer to ensure - to make sure - that the employee is safe. The statutory duty is expressed in terms of reasonable practicability. The word “ensure” carries with it a heightened obligation for an employer under the statute.
The elements of the offence created by section 19(1) are to be found within the statutory provision. The obligation on the employer is to ensure safety so far as is reasonably practicable. That is an element of the offence.
In determining whether the complainant has proved beyond a reasonable doubt that the employer failed to ensure safety so far as was reasonably practicable, a number of considerations may be expected to arise. As Gaudron J observed in Slivak, the determination of this element involves a value judgment. Given the nature of the subject matter of section 19(1), it can be expected that similar considerations to those that arise in the determination of a breach of a common law duty may also arise when considering whether this element under section 19(1) has been proved. However, it would be a materially different matter to import into section 19(1) elements of the offence incorporating common law requirements.
I reject the submission as put by the defendant. In particular, I reject the contention that common law requirements are imported as elements of the statutory offence. However, as Gaudron J observed in Slivak, although the determination of this element of the offence – the ensuring of safety so far as is reasonably practicable – involves a value judgment, certain principles have been identified in the case law. The principles identified by Her Honour are set out earlier in these reasons.
In the ordinary case it can be expected that foreseeability of risk of injury is likely to be a subject matter for consideration by a court when reaching a determination as to whether the element of ensuring safety so far as was reasonably practicable, has been made out. However, such a consideration does not import common law requirements into section 19(1) as an element of the offence.
Admissible evidence may well include what steps other employers may take. Such evidence may be relevant to a court’s consideration of whether reasonably practicable steps were available to be taken. But it does not follow that a reasonable employer test is imported as an element of the offence. It may be, in an appropriate case, a relevant matter to be weighed in the balance in determining whether the complainant has proved its case.
On the evidence before the Court, it was open to the Industrial Magistrate to find each of the elements of the offence proved beyond a reasonable doubt. The evidence established that there was a foreseeable risk, albeit that it may have been a low risk, of grave injury to an employee in the position of Mr Grose. That risk could have been materially reduced by having a system of requiring and enforcing the wearing of personal flotation devices whilst the vessel was under way. The risk of injury and its magnitude were readily foreseeable –that risk was not far fetched or fanciful – it was in fact foreseen. The skipper of the vessel considered that the buddy system would guard against the risk of falling overboard. He recognised the risk. All of these considerations not only allowed, but fully justified, the conclusion that the defendant had not provided and maintained a safe system of work so far as was reasonably practicable.
Conclusion
Permission to appeal should be granted. The appeal should be dismissed.
LAYTON J: I have had the benefit of draft reasons for decision provided by Gray J. I agree that the appeal should be dismissed for the reasons which he gives.
KELLY J: I would grant permission to appeal. I would dismiss the appeal. I agree with the reasons given by Gray J. There is nothing that I wish to add.
4
5
0