Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd
[2019] VSCA 50
•13 March 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0143
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| JCS FABRICATIONS PTY LTD | Respondent |
S APCR 2018 0144
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| THE JMAL GROUP PTY LTD | Respondent |
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| JUDGES: | WHELAN AP, PRIEST and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 22 February 2019 |
| DATE OF JUDGMENT: | 13 March 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 50 |
| JUDGMENT APPEALED FROM: | DPP v JCS and JMAL (No 2) [2018] VCC 1004 (Judge Trapnell) |
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CRIMINAL LAW – Interlocutory appeal – Occupational health and safety – Employer’s alleged failure to ensure that persons other than employees are not exposed to risks to health and safety – Unsecured plant falling from truck in the course of unloading – Non-employee suffered fatal injuries – Indictment and particulars allege that respondents failed to maintain a system with respect to the unloading of the plant by failing to ensure that a forklift supported the plant before restraint strapping released during the task of unloading the plant – Defence response relies on employee’s training, experience and previous adherence to system — Whether relevant to fact in issue — Defence response pleads that even if respondent’s employee failed to follow system the prosecution must still prove that there was reasonably practicable measure to maintain the system – Whether proper – Whether rules of attribution apply — Whether vicarious criminal liability applies – Occupational Health and Safety Act 2004 ss 21-23 – ABC Developmental Learning Centres Pty Ltd v Wallace (2007) 16 VR 409; R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321; DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P J Hannebery SC with Ms S Keating | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent JCS Fabrications Pty Ltd | Mr M Latham | Destra Lawyers |
| For the Respondent The JMAL Group Pty Ltd | Dr D Neal SC with Mr S T Russell | Sparke Helmore Lawyers |
WHELAN AP
PRIEST JA
MCLEISH JA:
Introduction
An indictment filed in the County Court charges each respondent — JCS Fabrications Pty Ltd (‘JCS’) and The JMAL Group Pty Ltd (‘JMAL’) — with a breach of s 23(1) of the Occupational Health and Safety Act 2004 (‘OHSA’ or ‘the Act’), which provides:
23 Duties of employers to other persons
(1) An employer[[1]] must ensure, so far as is reasonably practicable, that persons other than employees[[2]] of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking[[3]] of the employer.
Penalty: 1800 penalty units for a natural person;
9000 penalty units for a body corporate.
[1]By s 5(1) of the OHSA, ‘employer means a person who employs one or more other persons under contracts of employment or contracts of training’.
[2]Section 5(1) of the OHSA, ‘employee means a person employed under a contract of employment or contract of training’.
[3]The term ‘undertaking’ is not defined in the Act. In R v Associated Octel Co Ltd [1994] 4 All ER 1051, 1062, it was held that ‘undertaking’ means ‘enterprise’ or ‘business’.
The charges, to which the respondents have pleaded not guilty, arise out of an incident on 29 June 2015, which resulted in the death of Leon Unmack.
In circumstances we will later describe in greater detail, in the course of pre-trial argument the prosecution objected to JMAL’s reliance upon the contents of certain paragraphs of its Defence Response. The trial judge ruled, however, that JMAL would be permitted to rely on the impugned material (‘the ruling’ or ‘the interlocutory decision’).
Pursuant to certification of the trial judge given under s 295(3)(b) of the Criminal Procedure Act 2009 (‘CPA’),[4] the Director of Public Prosecutions seeks the leave of this Court to appeal the ruling.
[4]See DPP v JCS and JMAL (No 3) [2018] VCC 1005.
For the reasons that follow, we would refuse leave to appeal.
Prosecution Opening and Defence Response
So as to understand the issues raised in this application, it is convenient to set out the Prosecution Opening, filed 29 June 2018, in some detail:[5]
[5]Footnote references to the Depositions have been omitted. Emphasis has been added.
Background
1. On 29 June 2015 Leon Unmack died as a result of injuries suffered on the premises of [JCS].
2. The circumstances surrounding the incident on 29 June 2015 were as follows;
i. JCS is a general steel fabricator located at 3/18 Bormar Drive, Pakenham.
ii. [JMAL], trading as Odrocs Towing, is a towing company that specialises in the transportation of mobile plant.
iii. As at 29 June 2015 both JCS and JMAL were ‘employers’ pursuant to the [OHSA].
iv. On Monday 29 June 2015, Gregory McRae, a company driver for Odrocs Towing Services, was tasked to pick up a powder coating cabinet from Ruhr Street Dandenong and deliver it to JCS in Pakenham.
v. McRae was driving a Kenworth prime mover with a three-axle trailer connected.
vi. Leon Unmack accompanied McRae on this task. Unmack was ‘between jobs’ as a truck driver. Unmack was not employed by either JMAL or JCS;
vii.McRae and Unmack arrived at Dandenong at approximately 8am and loaded the flatbed trailer attached to the prime mover. They then made a trip to Pakenham and unloaded at 10am. They went back to Dandenong and collected a second load at approximately 1pm. They arrived back at Pakenham at 3.15pm and began to unload.
viii.The load being carried on the float consisted of two large items placed side by side and tied down using three 2500kg rachet straps that went over the two 8.5m bake ovens.
ix. McRae reversed the truck into the driveway of the JCS premises and got out of the truck. He stood on the left side of the trailer speaking to JCS director Greg Patton. Patton had told McRae that his forklift driver would begin to unload.
x. Shaun Dyall, a welder and general hand employed by JCS, was tasked to unload the plant from McRae’s truck using a forklift. Dyall had put the slippers on the fork and moved it into position to commence to unload the truck.
xi. Dyall was seated in the forklift in this location when he says the jockey (Unmack) ‘began to undo the straps on the load’. Dyall says that at the time the unloading commenced the slippers were ‘nowhere near’ the truck and the ends of the tynes [sic] would have been ‘about 2 feet’ away from the truck and on the ground. The load was ‘rocking around a bit’ then Dyall saw it falling off the trailer. Dyall was ‘fairly sure it was the last strap he (Unmack) had undone’.
xii. Another truck driver present at the scene, Robert Tyrell, said he saw;
The other two blokes were also undoing the straps on their load. I think they had three straps in total securing the load. I then heard a rachet on the other truck make a pop sound, which is the sound of a rachet releasing under pressure. The wide load then fell onto the person who was a passenger in the truck.
xiii.Dyall saw Unmack put his hand up to stop the falling plant but was unable to get out of the way.
xiv. McRae and Patton were still on the left side of the trailer when the load fell on the right hand side of the trailer.
xv. The plant fell onto Unmack and the tynes of the forklift. Dyall got off the forklift and ran to Patton and told him to call an ambulance.
xvi. Unmack could not be seen until Dyall returned to the forklift and lifted the fallen load. Patton and McRae pulled him from under the load.
xvii. Police and ambulance attended but were unable to save his life. An autopsy revealed the cause of death to be ‘chest and head injuries’.
[xviii. to xxii. not reproduced]
Charges
3. The evidence shows that both JCS and JMAL were ‘employers’ owing a duty pursuant to s 23 of the Act to ensure so far as was reasonably practicable that persons other than employees were not exposed to risks to their health and safety arising from the conduct of the employer.
4. It is alleged that on 29 June 2015;
i. JMAL and JCS were both conducting an undertaking in both Dandenong and Pakenham, namely the loading, transporting and unloading of the bake ovens;
ii. That there was a risk arising from that undertaking, namely that death or serious injury as a result of the load falling from the float trailer. In this instance, the undertaking exposed a person other than an employee to that risk, namely Leon Unmack;
iii. The risk could have been reduced by the implementation of the following reasonably practicable measure, namely ensuring that the load was supported by a forklift prior to it being unstrapped (JCS charge one, JMAL charge two).
5. It is alleged in charge one (JCS) and charge two (JMAL) that both accused;
i. Failed to maintain a system with respect to the unloading of plant that mitigated the risk of falling objects causing serious injury or death by failing to ensure that a forklift supported the load before the restraint strapping was released. It is alleged that this failure exposed Leon Unmack to a risk of death or serious injury.[[6]]
6. The evidence relied upon by the prosecution to establish that the step particularised in both the s 23 charges was reasonably practicable includes;
i. The Odrocs Towing [Safe Work Method Statement] dated 6 August 2014;
ii. The JCS Safe work procedures truck loading; and
iii. The Advance Crane Trucks [Job Safety Analyses].
[6]A fresh indictment, No C1711353.1, was filed on 2 July 2018, charging JCS (charge 1) and JMAL (charge 2) each with an offence under s 23. The Particulars to charge 1 include:
(j)The risk arose from the failure of JCS to maintain a system with respect to the unloading of the plant by failing to ensure that a forklift supported the plant before the restraint strapping was released during the task of unloading the plant.
(k) It was reasonably practicable for JCS to ensure that a forklift supported the plant before the restraint strapping was released.
And the Particulars to charge 2 include:
(g)The risk arose from the failure of JMAL to maintain a system with respect to the unloading of the plant by failing to ensure that a forklift supported the plant before the restraint strapping was released during the task of unloading the plant.
(h) It was reasonably practicable for JMAL to ensure that a forklift supported the plant before the restraint strapping was released.
JMAL’s amended Defence Response, dated 3 July 2018, includes the following:[7]
[7]Footnote references to the Depositions have been omitted. Emphasis has been added.
10. In relation to paragraph 5 of the Prosecution opening, insofar as it relates to JMAL, JMAL says:
i. It had employed a competent and experienced driver in Mr McRae.
ii. It had provided Mr McRae with information, instruction and training on the requirements for the safe conduct of the trucking operation including 50 hours training with another employee.
iii. Mr McRae was an experienced truck driver, and it was expected that he would load and unload the equipment safely in accordance with his experience and training and in accordance with JMAL’s established safe systems of work. There was nothing that put JMAL on notice that Mr McRae would perform his work other than in a safe manner.
iv. It had a Safe Work Method Statement which included instructions to ensure a forklift is available to support the load before unstrapping the load, to check that the load is supported, to ensure that you are standing clear of the forklift but still in sight of the operator and then unstrap the load.
v. Mr Patton says that system was used to unload the first load that day and was planned to be used for the second load.
vi. Mr McRae told investigators that he had instructed Mr Unmack to follow that system in relation to the second load and recorded that he had done so in the Incident Report he filed with the Company.
vii. Even if Mr McRae failed to follow the system of supporting the load with a fork lift prior to undoing the loading straps, the Prosecution would still have to prove that there was a reasonably practicable measure which JMAL should have taken to maintain that system.
viii. It was against company rules for Mr Unmack, who was not an employee of JMAL, to be in the truck.
It is to be noted that sub-paragraphs 10(vii) and (viii) above were amended following an earlier ruling by the trial judge to the effect that the contents of the paragraphs as initially formulated[8] were irrelevant.[9]
[8]In JMAL’s initial Defence Response, dated 27 June 2018, sub-paragraphs 10(vii) and (viii) were expressed as follows:
vii It was not foreseeable that McRae would depart from that system.
viii It was not foreseeable and against company rules for Mr Unmack, who was not an employee of JMAL to have been in the truck.
[9]See DPP v JCS and JMAL (No 1) [2018] VCC 1003, [26]–[27].
In this Court, the Director challenges the judge’s ruling permitting JMAL to rely on sub-paragraphs 10(i), (ii), (iii) and (vii) of the Defence Response (as amended).
Grounds of appeal and applicant’s contentions
The applicant filed two amended notices of application for leave to appeal, one naming JMAL as respondent and the other naming JCS.[10] Each notice contains two grounds of appeal, formulated in the same terms:
1. That the Learned Trial Judge erred in ruling that the matters contained in The JMAL Group Pty Ltd’s Defence Response filed 3 July 2018 at paragraphs 10(i), (ii) and (iii) were matters relevant to a fact in issue in the trial of The JMAL Group Pty Ltd and The JMAL Group Pty Ltd was entitled to avert to these matters in addressing the jury and to adduce evidence in support of those matters.
2. That the Learned Trial Judge erred in ruling that the matters contained in The JMAL Group Pty Ltd’s Defence Response filed 3 July 2018 at paragraph 10(vii) accurately stated the matters the prosecution must prove to achieve a conviction and that The JMAL Group Ltd was entitled to avert to these matters in addressing the jury and to adduce evidence in support of these matters.
[10]In his ruling granting certification under s 295(3) of the CPA, DPP v JCS and JMAL (No 3) [2018] VCC 1005, [16], the judge said:
Counsel for JCS submitted that there may be flow-on effects for it in the conduct of the trial in that my ruling may affect the way the Crown puts its case against JCS, particularly in respect of the forklift driver, Mr Dyall, who was an employee of JCS. The prosecutor accepted that there may be flow-on effects in the way it puts its case against JCS. On this basis I accept that JCS is potentially as affected by my ruling as is JMAL.
Under cover of the first ground, the applicant’s counsel drew attention to s 182(2) of the CPA, which provides that the summary of prosecution opening required by the section must outline ‘(a) the manner in which the prosecution will put the case against the accused’ and ‘(b) the acts, facts, matters and circumstances being relied on to support a finding of guilt’. In turn, s 183(2) requires the accused’s response to the summary of the prosecution opening to ‘identify the acts, facts, matters and circumstances with which issue is taken and the basis on which issue is taken’.
Counsel for the applicant contended in writing that, first, having regard to the manner in which the prosecution has indicated it will put its case against JMAL, ‘the matters set out in paragraphs 10(i), (ii) and (iii) of the defence response cannot as a matter of law be a basis upon which issue is taken with the prosecution case’; and, secondly, that ‘those matters cannot be relevant to a fact in issue in the trial’, so that ‘it is impermissible for evidence to be adduced in support of those contentions or submissions made to the jury in support of those contentions’. Similar submissions were advanced orally, save that senior counsel narrowed his main focus to paragraph 10(iii), the two preceding paragraphs being said to ‘feed into’ it.
It was submitted that the prosecution case is that JMAL failed in its duty not to expose Leon Unmack to risks arising from the undertaking on 29 June 2015 as particularised. The applicant’s counsel submitted that the contentions set out in paragraphs 10(i), (ii) and (iii) ‘amount to an invitation for the jury to acquit on an impermissible basis’, that basis being that whilst Mr McRae, an employee of JMAL, may have exposed Mr Unmack to risk by a failure to perform the task safely in accordance with established safe systems of work, JMAL did not do so. Those contentions draw on the same logic which this Court held to be impermissible in CICG.[11] In oral submissions, senior counsel distilled the essence of his submissions into five propositions: first, ‘CICG represents the law’; secondly, that being so, no issue of attribution arises; thirdly, it is thus not open to defend an alleged breach of s 23(1) by saying that while one part of the accused company may have breached its duty, another did not, so that a verdict of not guilty might follow; fourthly, that is, however, the argument that JMAL seeks to advance; and, fifthly, because that argument is flawed, JMAL should not be permitted to advance it.
[11]R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321, 325-6 [21]–[23], 327–8 [26]–[30] (Maxwell P, Buchanan and Redlich JJA) (‘CICG’).
Counsel submitted that a conclusion by a jury that Mr McRae was ‘competent and experienced’ at the time he was hired by JMAL, or that he was trained as necessary, could not rationally have any impact on the fact in issue in the trial: that is, whether the specified measure was undertaken by JMAL; that measure would have reduced the risk to Mr Unmack; and the measure was reasonably practicable in the circumstances. Nor could the foreseeability of Mr McRae failing to follow the documented procedure for the task rationally have any impact on a fact in issue.[12] The applicant’s counsel submitted that the jury would be required to consider whether JMAL knew, or ought to have known, about the risk to persons other than employees being killed or injured by plant falling from the trailer during the unloading task, and what means existed to reduce that risk. In the circumstances of the case, the jury would not, however, be required to consider what expectations JMAL management might have had about whether Mr McRae, a JMAL driver, might place a non-employee at risk by acting in a manner contrary to those expectations.
[12]See s 20(2)(c) of the OHSA.
In support of the second ground, the applicant’s counsel submitted that the contents of sub-paragraph 10(vii) of JMAL’s response to the summary of prosecution opening contain an inaccurate statement of the matters that the prosecution must prove in order to establish a breach of s 23(1). It was submitted that, given that JMAL’s status as an employer, and Mr Unmack’s status as a person other than an employee, are not in dispute, the issues for the jury would be whether they were satisfied that:
· first, at the JCS factory on 29 June 2015 there existed a risk to Leon Unmack, namely a risk of serious injury or death as a result of a load falling from the float trailer during the task of unloading the plant;
· secondly, the specified risk arose from JMAL’s undertaking, namely the task of unloading the powder coating cabinet from the float trailer at the workplace on 29 June 2015;
· thirdly, JMAL failed to take a measure, namely to ensure that a forklift supported the plant before the restraint strapping was released during the task of unloading the plant;
· fourthly, the risk to Mr Unmack would have been reduced had the accused taken that measure; and
· fifthly, having regard to the factors listed in s 20(2) of the OHSA, it was reasonably practicable in the circumstances for JMAL to take that measure.
The applicant’s counsel argued that if the jury find that the acts or omissions of Mr McRae establish that the particularised measure was not taken; that it would have reduced the risk; and that it was reasonably practicable in the circumstances to have been taken, then the charge against JMAL would be proven. JMAL’s contention at sub-paragraph 10(vii), however, invites the jury to reason that once the matters specified have been proven, the prosecution must then establish that a further reasonably practicable measure — not yet identified, and beyond that which has been particularised — must be proven. That simply cannot be the case. Although it is entirely open to the defence to argue that it was not reasonably practicable in the circumstances to take the measure particularised in the charges, if, despite those submissions, the jury determines that it was reasonably practicable to take that measure, the charge is proven (and nothing further needs to be established).
Respondents’ contentions
Counsel for JMAL submitted in writing that on the day Leon Unmack was killed, JMAL’s driver, Gregory McRae, was ‘an experienced, competent and well-trained driver’, who had (among other things) been employed by JMAL to train JMAL’s less experienced employees. He had delivered a similar load without incident in the morning of the same day. During that delivery, Mr McRae had followed JMAL’s safe system of work for the loading and unloading of plant, ensuring that the load was supported by a forklift before the strapping was released. On the available evidence, the incident resulting in Mr Unmack’s death occurred because the load restraint strapping was undone without the load being supported by a forklift. The strapping was undone either by Mr Unmack, who was an unauthorised passenger, or by Mr McRae, the driver.
With respect to the first ground of appeal, JMAL’s counsel submitted that the Court in CICG made the point that occupational health and safety prosecutions are not about attribution of the acts of an employee to the company. Rather, they are about whether the accused company had taken all reasonably practicable steps to maintain a safe work environment. It was submitted that if an employer has established a safe system of work and maintains that system through information, instruction and training, then a spontaneous or sudden lack of judgement on the part of an employee does not expose the employer to liability. So much, it was contended, was recognised by this Court in CICG.[13] Counsel also submitted that the corollary to the principle stated in CICG — that liability under this legislation is not established by an isolated act of negligence of an employee — is reflected by a number of cases in this area.[14] What the prosecution seeks to do, counsel submitted orally, is impose vicarious criminal liability upon JMAL for McRae’s negligence.
[13]CICG, 326 [23].
[14]Counsel cited Bunnings Forest Products Pty Ltd & Ors v Shepherd [1998] WASCA 199, 25–27 (Anderson J, Franklyn and Ipp JJ agreeing) (‘Bunnings’); Cullen v State Rail Authority (NSW) (1989) 31 IR 207, 210 (Fisher P); Collins v State Rail Authority of NSW (1986) 5 NSWLR 209, 214 (Street CJ); R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 331, 351; [1999] 1 WLR 1526, 1548 (Roch LJ, Bennett and Thomas JJ) (‘Nelson’); Genner Constructions Pty Ltd v WorkCover Authority (NSW) (Inspector Guillarte) (2001) 110 IR 57, 75 [68] (Wright, Walton and Hungerford JJ); WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Pty Ltd (2002) 123 IR 121, 136 [40]–[42], [59]–[78] (Walton J, Wright J agreeing); R v HTM Ltd [2007] 2 All ER 665 (Latham LJ; Cooke J and Sir Richard Curtis agreeing at [33]-[34]); Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 591-592 [125] (Heydon J) (‘Kirk’). See also the Judicial College of Victoria, Victorian Criminal Charge Book, [7.9.1.1] – Bench Notes: Employer’s Duty to Employees, [98]–[99].
As to the second ground, counsel for JMAL submitted that the contents of sub-paragraph 10(vii) accord with the cited authorities. The central allegation is that JMAL failed to ‘maintain a system with respect to the unloading of plant that mitigated the risk of falling objects causing serious injury or death’. Counsel contended that one of the reasonably practicable measures or steps a company may take to maintain such a system is the appointment of employees and supervisors with the necessary skills, training and experience to ensure that work is carried out safely. Hence, JMAL is entitled to rely on the matters in sub-paragraphs 10(i), 10(ii) and 10(iii) in its defence response, and lead evidence at trial to establish them.
Save to say that counsel for JCS for the most part supported the submissions advanced by JMAL’s counsel, it is unnecessary to set out his submissions in greater detail.
Analysis
Division 2 of Part 3 of the OHSA (ss 21 to 23) sets out the principal duties imposed upon employers for the protection of employees and non-employees. Thus, ss 21 and 22 set out the duties to employees,[15] and s 23 — with which the present case is concerned — sets out the duty to persons other than employees.[16]
[15]Subsection 22(1)(b) also imposes a duty to ‘monitor conditions at any workplace under the employer’s management and control’.
[16]See [1] above.
The provisions of s 23, which impose a duty on an employer with respect to non-employees, may be contrasted with those of s 21, which impose a duty on an employer with respect to employees. Hence, s 21(1) imposes a general duty on an employer to provide and maintain for employees — so far as is reasonably practicable — a working environment that is safe and without risks to health; and s 21(2) spells out a number of specific ways in which that general duty may be contravened.[17]
[17]Subsections (1) and (2) provide:
21 Duties of employers to employees
(1) An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.
…
(2) Without limiting subsection (1), an employer contravenes that subsection if the employer fails to do any of the following —
(a) provide or maintain plant or systems of work that are, so far as is reasonably practicable, safe and without risks to health;
(b) make arrangements for ensuring, so far as is reasonably practicable, safety and the absence of risks to health in connection with the use, handling, storage or transport of plant or substances;
(c) maintain, so far as is reasonably practicable, each workplace under the employer's management and control in a condition that is safe and without risks to health;
(d) provide, so far as is reasonably practicable, adequate facilities for the welfare of employees at any workplace under the management and control of the employer;
(e) provide such information, instruction, training or supervision to employees of the employer as is necessary to enable those persons to perform their work in a way that is safe and without risks to health.
By way of contrast, the general duty imposed upon employers under s 23(1) is to ensure — that is, make certain[18] — so far as is reasonably practicable that persons other than the employer’s employees are not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking. Section 23 does not contain any provision equivalent to s 21(2), spelling out specific ways in which the general duty imposed under s 23(1) may be contravened. Thus, for example, there is no specific contravention constituted by, or flowing from, a failure to ‘provide or maintain plant or systems of work that are, so far as is reasonably practicable, safe and without risks to health’. It is clear, however, that a consideration of the criteria set out in s 21(2) will inform the determination of whether an employer has breached the duty to non-employees provided for by s 23(1).[19]
[18]See ABC Developmental Learning Centres Pty Ltd v Wallace (2007) 16 VR 409, 414 [19] (Maxwell P, Chernov and Neave JJA) (‘ABC’).
[19]See [29]–[30] below.
Since the employer’s duty under s 23(1) is subject to the qualification of reasonable practicability, as a matter of construction it is plain that the duty imposed by s 23(1) of the OHSA is not absolute.[20] The OHSA does not require employers to ensure that accidents never happen.[21] Rather, s 23(1) imposes a duty on an employer to ensure — so far as is reasonably practicable — that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking. The relevant breach consists in an employer’s failure to eliminate or reduce a risk to the health and safety of persons other than employees. Further, since the offence under s 23(1) is risk-based, not outcome-based, the occurrence of death or injury is of evidentiary significance only.[22]
[20]ABC, 412 [14].
[21]Although the case concerned charges under s 21(1) and s 21(2)(a), and s 21(1) and s 21(2)(e), of the 1985 Act (rather than the equivalent of s 23), see Holmes v R E Spence & Co Pty Ltd (1992) 5 VIR 119, 123 (Harper J). See also R v Australian Char Pty Ltd [1999] 3 VR 834, 847 [55] (Phillips CJ, Smith and Ashley JJ) (‘Australian Char’); DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557, 564–5 [34] (Vincent, Eames and Nettle JJA).
[22]See DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676, 682 [3], 701 [91], 703 [99] (Maxwell P, Redlich and Whelan JJA) (‘Vibro-Pile’).
For practical purposes, therefore, the prosecution will need to establish in the case of each respondent that:
· there was a risk to the health and safety to non-employees arising from the conduct of its undertaking;
· there was an identified measure or measures that would have eliminated or reduced the risk;[23] and
· it was reasonably practicable in the circumstances for the respondent to have taken those measures.[24]
[23]In this case, the identified measure was ‘to ensure that a forklift supported the plant before the restraint strapping was released’. See footnote 6 above.
[24]See Vibro-Pile, 682–3 [6].
There is no dispute in this case that at the relevant time the respondents were employers; that Mr Unmack was a person other than an employee; or that the respondents were conducting an undertaking — which included the loading and unloading of bake ovens — when Mr Unmack received the injuries from which he died. The live issue is whether the respondents failed to ensure, so far as was reasonably practicable, that non-employees (including Mr Unmack) were not exposed to risks to their health and safety arising from the loading, transporting and unloading of the bake ovens.
In order to determine what was reasonably practicable to ensure that non-employees were not exposed to risks to their health and safety arising from the conduct of the employer’s undertaking, it is necessary to have regard to ss 20(1) and (2) of the OHSA, which provide:
20 The concept of ensuring health and safety
(1) To avoid doubt, a duty imposed on a person by this Part or the regulations to ensure, so far as is reasonably practicable, health and safety requires the person—
(a)to eliminate risks to health and safety so far as is reasonably practicable; and
(b) if it is not reasonably practicable to eliminate risks to health and safety, to reduce those risks so far as is reasonably practicable.
(2) To avoid doubt, for the purposes of this Part and the regulations, regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety—
(a) the likelihood of the hazard or risk concerned eventuating;
(b) the degree of harm that would result if the hazard or risk eventuated;
(c) what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;
(d) the availability and suitability of ways to eliminate or reduce the hazard or risk;
(e) the cost of eliminating or reducing the hazard or risk.
By virtue of s 20(1)(a), an employer must eliminate all risks to the health and safety of persons who are not its employees if that is reasonably practicable. If elimination of a risk is not reasonably practicable, s 20(1)(b) requires the employer to reduce the risk so far as is reasonably practicable. In determining what is reasonably practicable to eliminate or reduce the relevant risk, regard must be had to the criteria in s 20(2)(a) to (e), including the likelihood of the risk eventuating; the degree of harm that would result if it did eventuate; what the employer knew (or ought reasonably to have known) about the risk, and any ways of eliminating or reducing it; and the availability and suitability of ways of eliminating or reducing it. Moreover, any determination of what is reasonably practicable to eliminate or reduce the risk must be carried out objectively having regard to knowledge acquired from all sources, including those of the particular trade or industry of the employer.[25]
[25]Chugg v Pacific Dunlop Ltd (N0 2) [1999] 3 VR 934, 944 [39] (Kaye and Beach JJ), 964–5 [134] (Ormiston J); Australian Char, 844 [43].
Kirk, upon which JMAL relied, involved consideration of ss 15, 16 and 53 of the (now repealed) Occupational Health and Safety Act 1983 (NSW) (‘the NSW Act’). Sections 15 and 16 of that Act[26] — which bore some similarity to ss 21 and 23 of the OHSA — respectively imposed duties on employers with respect to employees and non-employees (and s 53 provided a defence if compliance with the Act or regulations was not reasonably practicable). With respect to the obligations flowing from ss 15 and 16, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ observed:[27]
A few observations may be made at this point. The obligation upon the employer is expressed in terms personal to that employer. It is the employer who must ensure the health, safety and welfare of employees at work. The obligation is the kind of non-delegable duty spoken of in Kondis v State Transport Authority.[28] It is not expressed in terms of the standard recognised by the common law, to take reasonable care. It is higher. So much is evident from the requirement ‘to ensure’ the health, safety and welfare of employees or that persons are not exposed to risks to their health and safety at the place of work. The exclusion of the common law standard is confirmed by the terms of the defences provided by s 53 ...
Section 15(2) identified, in general terms, some types of measures which an employer may need to take in order to ensure the health, safety and welfare of employees. The list is not exhaustive. What measures are necessary to be taken will depend upon the particular circumstances prevailing at the workplace, what activities are there conducted, what machinery, plant or substances are involved, the tasks undertaken by the employees and the skills of the employees in question, to mention but a few factors. What the terms of sub-s (2) make plain is that an employer must identify risks to the health, safety and welfare of employees at the workplace and take steps to obviate those risks. Thus where plant and machinery are used at a workplace, an employer must keep them in good order, where to do otherwise would pose a risk to employees’ health and safety, and must implement systems concerning their use so as to obviate any such risk (s 15(2)(a)). An employer is required to identify risks to employees which might be overcome by the provision of information, instruction, training or supervision and then to take such action in that regard ‘as may be necessary’ (s 15(2)(c)). An employer is to ‘take such steps as are necessary’ to make available information concerning the use for which plant is designed and conditions necessary for its safe use (s 15(2)(f)(i)). Section 16 required similar considerations and measures to be undertaken with respect to non-employees present at the workplace.
Sections 15 and 16 comprehend that the generally stated duty is contravened when a measure should have been taken by an employer to obviate an identifiable risk. ...
[26]See Kirk, 551–2 [9], where ss 15 and 16 are reproduced.
[27]Kirk, 552–3 [10]–[12] (emphasis added). See also Vibro-Pile, 693 [52].
[28](1984) 154 CLR 672.
From these passages it is plain that the plurality in Kirk regarded the kinds of considerations enumerated in s 15(2) of the NSW Act (a close equivalent of s 21(2) of the OHSA) as being applicable to s 16 of the NSW Act (which bears a degree of similarity to s 23(1) of the OHSA). It follows, therefore, that the same kinds of considerations and measures concerning employees set out in s 21(2) of the OHSA — including the provision or maintenance of plant or systems of work that are, so far as is reasonably practicable, safe and without risks to health[29] — must be taken into account in applying the obligation in 23(1) with respect to persons other than employees.
[29]See s 21(2)(a) of the OHSA at footnote 17 above.
Subject to our later observations on how senior counsel for the prosecution explained the case in oral submissions, in resolving the present applications, it is important to understand that the essential case advanced by the prosecution is that the respondents failed ‘to maintain a system with respect to the unloading of the plant by failing to ensure that a forklift supported the plant before the restraint strapping was released during the task of unloading the plant’.
JMAL’s response is (in part) that an isolated act of negligence by its employee cannot establish a failure by the company to maintain a proper system with respect to unloading plant. By those aspects of its Defence Response impugned under cover of the first ground of appeal — paragraphs 10(i), (ii) and (iii) — JMAL in effect asserts, first, that JMAL had a safe system of work for the loading and unloading of plant; secondly, that its employee, Mr McRae was competent and experienced in the loading, transport and unloading of plant; thirdly, that it had provided Mr McRae with information, instruction and training with respect to the safe loading, transport and unloading of plant; and, fourthly, there was nothing that put JMAL on notice that Mr McRae would perform his work other than in a safe manner.
Both the applicant and JMAL draw support for their respective positions from CICG. In that case, the company had pleaded guilty to breaching the general duty under s 21(1) of the Occupational Health and Safety Act 1985 (‘the 1985 Act’) to provide and maintain so far as is practicable for employees a working environment that is safe and without risks to health, breach of that general duty being constituted by a failure under s 21(2)(a) ‘to provide and maintain plant and systems of work that are so far as is practicable safe and without risks to health’.[30] In that case, a construction company, CICG, was engaged in refurbishing a school building. A builder’s labourer employed by the company, Jason Roach, suffered injuries when he fell three metres to the floor through a void in a roof that he was working on. The previous day, another worker, George Podger, who was not a scaffolder, had incompetently erected scaffolding under the roof, but had erected it at a point where it could not conveniently have been used to perform the required work on the roof. (The scaffolding was later deemed to be unsafe for a number of reasons.) Peter Bacon, the company’s site manager, among other things had directed Podger (whom he knew was not a scaffolder) to erect the scaffolding, and had failed to notice that it was in the wrong location and otherwise unsafe. Bacon also directed Roach to perform the relevant work on the roof without first ensuring that a Job Safety Analysis — a written document designed to identify risks, plan precautions to avoid the identified risks and detail a step-by-step procedure for performing the job to minimise risk — was completed. The day after Roach fell, Bacon directed Podger to get onto the roof and finish the job. On the plea before the sentencing judge, relying on ‘principles of attribution’ the defence accepted that Bacon’s failures were the failures of the company. CICG was, however, critical of how Bacon had allowed the work to be undertaken, and submitted that he had failed the company.
[30]The 1985 Act was repealed by the OHSA. Subsections 21(1) and 21(2)(a) were, however, re-enacted in the OHSA with the addition of the word reasonably, so that the qualifying phrases in each now read ‘so far as is reasonably practicable’.
This Court held that CICG’s reliance on principles of attribution proceeded from a false premise, since no question of attribution arose.[31] The Court said:
Had CICG contested the charge, the court would have had to decide whether the company had failed to provide and maintain a safe working environment and, in particular, a safe system of work. The court would not have been called on to decide whether, as a matter of law, the acts and omissions of Bacon were the acts and omissions of the company itself. Rather, the court would have had to decide whether, on the evidence of Bacon’s acts and omissions, and the resultant serious risks to which first Roach and then Podger were exposed, the company had done everything (reasonably) practicable to ensure the safety of its employees.
[31]CICG, 325 [22].
Significantly, the Court made it clear that the company’s liability in that particular case did not arise from a momentary lapse of judgment, but was the product of the company’s failure over time. The Court observed:[32]
The events of this day suggest a foolish or deliberate disregard of the company’s safety management system by three of its employees, as a consequence of the company’s failure over time to supervise and monitor its employees sufficiently in the course of the performance of their work and its over-reliance upon the discretion of employees in matters of safety. The conclusion is inescapable that its employees’ non-compliance with its safe system of work was not the consequence of a sudden lapse of judgment by them during these two days. The company’s duty was to ensure that its employees worked in accordance with the safety instructions that they had been given. The company’s submission that it could have done no more to comply with its statutory obligation to provide a safe system of work cannot be sustained.
[32]Ibid 332 [50].
In ABC, the Court considered CICG and a number of other authorities relied upon by counsel for JMAL, including British Steel[33] and Gateway Foodmarkets.[34] ABC concerned a proven charge under s 27(1) of the Children’s Services Act 1996 (‘CS Act’), which provided that the proprietor of a children’s service ‘must ensure that all children being cared for or educated by the service are adequately supervised at all times that children are on the premises where the service operates or in the care of that service’. A child in the care of a child care centre managed to climb over the fence of the playground fence and leave the centre, unaccompanied and unsupervised, notwithstanding two staff having a clear and uninterrupted view of the playground area. In the Magistrates’ Court at first instance, and in the Trial Division of the Supreme Court on appeal, the case turned on principles of attribution.
[33]R v British Steel plc [1995] 1 WLR 1356, 1363 (‘British Steel’).
[34]R v Gateway Foodmarkets Ltd [1997] 3 All ER 78, 80–1, 83–4 (‘Gateway Foodmarkets’).
On appeal, this Court observed that the duty under s 27(1) of the CS Act has ‘all of the same characteristics’ as the duty under s 21 of the OHSA,[35] and made it clear that rules of attribution do not apply. The Court said:[36]
In our view, on the proper construction of s 27 of the CS Act no rules of attribution are called for. In [CICG], this court explained why no rules of attribution (of acts of an employee to the employer company) were called for where the employer was alleged to have breached its statutory duty to ensure a safe working environment for employees. In our opinion, the duty of a proprietor of a children’s service to ensure adequate supervision of children is a duty of the same kind. …
And also:[37]
Under s 27(1), the proprietor has a duty to ensure — that is, make certain — that a certain state of affairs exists viz adequate supervision of all children. Like s 21(1) of the [OHSA], s 27(1) is framed to achieve a result. Unless there is adequate supervision, the company is in breach. Liability under the section does not depend upon any failure by the company itself, meaning by those persons who ‘embody the company’. If it is proved that there was not adequate supervision, it is immaterial where in the organisation the failure occurred.
[35]ABC, 414 [18].
[36]Ibid 412 [12] (footnotes omitted).
[37]Ibid 414 [19].
Moreover, in ABC the Court made plain that whether there has been a failure to ensure adequate supervision will be a question of fact in each case. In circumstances where the supervision of children at a children’s service will be wholly or very largely the responsibility of the staff rather than of management, whether a single lapse in supervision by a staff member will or will not constitute a failure by the proprietor to ensure adequate supervision will depend on the court’s view of what the proprietor’s duty required in the circumstances.[38]
[38]Ibid 415 [23].
In light of CICG and ABC, it is tolerably clear that rules of attribution do not apply to a charge under s 23(1) of the OHSA. At the risk of repetition, the duty of an employer company under s 23(1) is to ensure, so far as is reasonably practicable, that non-employees are not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking. Unless the company has done all that is reasonably practicable to ensure that non-employees are not exposed to the relevant risks, it will be in breach of the section. If it is proved that the company has not done all that is reasonably practicable, it is immaterial to ask where in the company hierarchy the failure occurred. In this case, that part of JMAL’s undertaking which is in issue — the loading, transport and unloading of plant — was being carried out by its employee, Mr McRae, rather than by management. Hence, whether a single lapse by Mr McRae will or will not expose JMAL to liability under s 23(1) must depend upon a consideration of what the duty under the section required in the prevailing circumstances.
Kirk makes it clear, in our view, that the measures necessary to be taken to satisfy the duty imposed by s 23(1) will depend upon a number of factors, including (but not limited to): the particular nature and circumstances of the employer’s undertaking; the activities conducted as part of the undertaking; the plant involved; the tasks to be undertaken by employees; and the skills of the employees in question.[39]
[39]See [29] above.
Subject to the further observations below, in the instant case, the prosecution alleges that the respondents failed to maintain a system with respect to the unloading of the plant by failing to ensure that a forklift supported the plant before the restraint strapping was released during the task of unloading the plant. Putting the case in that fashion invites scrutiny of the whole system — including the experience, skill, knowledge and training of those employees who were part of the system — so as to determine whether JMAL failed to ensure so far as is reasonably practicable that non-employees were not exposed to risks to their health and safety in the conduct of JMAL’s undertaking.
Understood in that way, there is nothing objectionable in paragraphs 10(i), (ii) and (iii) of JMAL’s amended Defence Response.
So far as paragraph 10(vii) is concerned, insofar as there is an alleged failure to maintain a system, we do not consider it to be an error to assert that even if Mr McRae failed to follow the system of supporting the load with a fork lift prior to undoing the loading straps, the prosecution would still have to prove that there was a reasonably practicable measure which JMAL should have taken to maintain that system. In circumstances where JMAL had a documented system for loading and unloading static material loads,[40] and where Mr McRae had — in conformity with that system — unloaded a bake oven earlier on the fateful day by securing it with a forklift before the loading straps securing the plant were undone, it may only be a short step for a jury to conclude that there was a reasonably practicable measure available to JMAL to ensure that non-employees were not exposed to risks to their health and safety in the conduct of its undertaking.
[40]At the relevant time, JMAL, trading as Odrocs Towing, had a ‘Safe Method Statement — Loading/Unloading Materials on Float Truck’. It required the driver to ensure that the load was supported by a forklift before the load was unstrapped and removed from the truck.
The trial judge was correct to conclude that paragraph 10(vii) of the amended Defence Response was valid.
Vicarious’ criminal liability
In the course of oral submissions senior counsel for the prosecution contended, if we understood him correctly, that the impugned paragraphs of JMAL’s Defence Response were irrelevant because if Mr McRae had failed to take a step which would have eliminated or reduced the ‘risk’, JMAL would have committed the charged offence, no matter what other evidence was led or other matters were established. As we understood it, he was contending that an individual failure by an employee on a single unforeseen occasion necessarily constitutes a failure to ‘maintain’ an otherwise safe system, no matter what prior steps the employer may have taken. Senior counsel for JMAL characterised this approach as the imposition of ‘vicarious’ criminal liability.
To the extent that this was an analysis being contended for by the applicant, we reject it.
CICG establishes that the relevant issue is not whether the employee’s acts and omissions are to be ‘attributed’ to the employer, but rather, whether, on the evidence of the employee’s acts and omissions, the employer has taken all reasonably practicable measures. CICG makes it clear that an employer cannot ‘disown’ the acts of the employee. But CICG does not stand for the proposition that nothing other than the acts or omissions of an employee, which cause an accident or relevant event, are relevant. Apart from anything else, such an approach would be inconsistent with the fact that in both CICG and ABC the Court recognised that whether an act or omission was properly to be characterised as ‘a sudden lapse of judgment’ (CICG[41]) or ‘a lapse in supervision’ (ABC[42]) were relevant considerations.
[41]CICG, 332 [50].
[42]ABC, 415 [23].
The applicant’s contention in this regard, if we understood it correctly, amounts to a contention that Mr McRae’s failure to ensure that a forklift supported the load before the restraint strapping was released establishes the alleged failure to ‘maintain’ the system and the offence by JMAL, and that any additional evidence about reasonably practicable measures is irrelevant. There are two fundamental problems with this approach.
First, by focusing on the cause of the accident, this analysis falls into an error identified by this Court in Vibro-Pile. It equates the accident with the risk.[43] In Vibro-Pile it was the defendant who advanced this incorrect approach. Here, it seems, the prosecution is proposing to advance that contention. The Court in Vibro-Pile explained the problem in the following terms:
undue focus on the accident is likely to lead to an inappropriately narrow definition of the risk the subject of the charges. This point has been succinctly expressed, in terms approved by the New South Wales Industrial Court, as follows:
[C]areful attention must be paid to the correct identification of the risk the subject of the charges ... [I]t is inappropriate to seek to artificially confine the risk to one narrowly defined by reference to an accident with the benefit of hindsight: it is the general class of risk which matters. The danger repeatedly cautioned against of focussing too much attention on an accident is twofold: such a misguided focus can obscure the relevant risk, and it can also misdirect an analysis of causation.
[43]Vibro-Pile, 699 [86].
Secondly, the analysis contended for by the applicant (if we have understood it correctly) seeks to preclude reliance on a relevant matter which is a question of fact for the jury. In this respect, we would adopt the observations of the English Court of Appeal in Nelson. In a passage cited by this Court in ABC,[44] the Court observed, in relation to relevantly similar legislation and a prosecution concerning the negligent installation of a gas appliance, the following:
The question of what was reasonably practicable is also a question of fact for the jury, depending on the circumstances of each case. The fact that the employee who was carrying out the work, in this case the fitter installing the appliance, has done the work carelessly or omitted to take a precaution he should have taken, does not of itself preclude the employer from establishing that everything that was reasonably practicable in the conduct of the employer’s undertaking to ensure that third persons affected by the employer’s undertaking were not exposed to risks to their health and safety had been done.[45]
[44]ABC, 414 [17].
[45]Nelson [1998] 4 All ER 332, 351; [1999] 1 WLR 1526, 1548. In Bunnings the Full Court of the Western Australian Supreme Court in a relevantly similar context held that a failure to ‘maintain’ a system is ‘not proved against an employer simply by proof that an employee did something which was not in accordance with the system’.[45] This may go too far. In an appropriate case such proof may be sufficient in itself. The relevant issue here is whether proof of any matters other than the employee’s conduct can be adduced.
The employer cannot ‘disown’ the acts or omissions of an employee. In this context, issues of attribution do not arise. Mr McRae’s acts or omissions may be sufficient in themselves to establish the commission of an offence by JMAL. But the evidence of Mr McRae’s acts and omissions is not the only evidence that is relevant, or potentially relevant, and JMAL is not precluded from leading evidence seeking to establish that everything reasonably practicable was done. Of course, as this Court observed in CICG, one of the matters employers must recognise and plan for is the inevitability of human error ranging from inadvertence, inattention or haste through to foolish disregard of personal safety and deliberate non-compliance with safe systems of work.[46]
[46]CICG, 332 [49].
Conclusion
For the foregoing reasons, neither ground can be upheld.
Leave to appeal should be refused.
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