Fremantle Steam Laundry Pty Ltd v Shepherd - [2000] WASCA 17

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: FREMANTLE STEAM LAUNDRY PTY LTD -v- SHEPHERD [2000] WASCA 17

CORAM: HEENAN J

HEARD: 14 JANUARY 2000

DELIVERED : 11 FEBRUARY 2000

FILE NO/S: SJA 1172 of 1999

BETWEEN: FREMANTLE STEAM LAUNDRY PTY LTD
Appellant
AND
TANYA GAI SHEPHERD
Respondent

Catchwords:

Criminal law - Occupational safety and health - Failure to provide safe system of work - Experienced employee attempting to remove article jamming conveyor belt - Belt suddenly moving and catching hand - Challenge to findings of fact by Magistrate - Dismissal of appeal against conviction - Penalty not excessive

Legislation:

Occupational Safety and Health Act 1984 s 19

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Mr M H Zilko
Respondent: Mr D J Matthews

Solicitors:

Appellant: Lawton Gillon
Respondent: State Crown Solicitor

Case(s) referred to in judgment(s):

R v F Howe & Son (Engineers) Ltd [1999] 2 All ER 249

Case(s) also cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167
Australian Char Pty Ltd (1995) 79 A Crim R 427
Bowen v Sheetmetal & Mechanical Services (WA) Pty Ltd, unreported; SCt of WA (Scott J); Library No 930279; 20 May 1993
Bunnings Forest Products Pty Ltd v Shepherd, unreported FCt SCt of WA (Anderson J); Library No 980235; 5 May 1998
Collins v State Rail Authority of NSW (1986) 5 NSWLR 209
Cullen v State Rail Authority (NSW) (1989) 31 IR 207
Devries v Australian National Railways Commission (1993) 177 CLR 472
Graham v Dalkeith/Nedlands Bowling Club Inc, unreported; SCt of WA (Walsh J); Library No 8630; 5 December 1990
Green v Mabey, unreported; SCt of WA (Parker J); Library No 940711; 7 December 1994
Haysdale Nominees Pty Ltd v Shepherd, unreported; SCt of WA (Owen J); Library No 980177, 9 April 1998
House v The King (1936) 55 CLR 499
Industrial Galvanisers Corporation Pty Ltd v Shepherd [1999] WASCA 282
Jones v Hyde (1989) 63 ALJR 349
McLaughlin v Daily Telegraph Newspaper Co Ltd [No 2] (1904) 1 CLR 243
Morrison v Amalgamated Food and Poultry Pty Ltd, unreported; SCt of WA (Rowland J); Library No 930252; 10 May 1993
Morrison v Hulme Wool Scouring Company (1938) Pty Ltd, unreported; SCt of WA (Commr Ng) Library No 930457; 6 August 1993
Morrison v Winton and Atlas Group Pty Ltd, unreported; SCt of WA (Scott J); Library No 960698; 12 December 1996
Murphy v Morrison, unreported; SCt of WA (Parker J); Library No 960089; 15 February 1996
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306
Troon Holdings Pty Ltd v MacCarron, unreported; SCt of WA (Wheeler J); Library No 980572; 5 October 1998

HEENAN J: On 10 September 1999 in the Court of Petty Sessions at Fremantle Mr I G Brown SM convicted the appellant company on a charge under s 19(1)(a) and s 19(6) of the Occupational Safety and Health Act 1984 and imposed a fine of $10,000. The appellant challenges the conviction on the ground that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Fremantle Steam Laundry Pty Ltd v Shepherd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2000] WASCA 17
Decision Date: 11 FEBRUARY 2000

CaseChat Overview and Summary

The case of Fremantle Steam Laundry Pty Ltd v Shepherd involved the employer, Fremantle Steam Laundry Pty Ltd, being prosecuted for a failure to provide a safe system of work under occupational safety and health legislation. The dispute arose when an experienced employee was attempting to remove an article jamming the conveyor belt. The belt suddenly moved, catching the employee's hand, resulting in injury. The employer was subsequently convicted in the Magistrates Court of Western Australia and appealed against both the conviction and the penalty imposed.

The primary legal issues before the court were whether the findings of fact made by the Magistrate were open to challenge and whether the penalty imposed was excessive. The central issue was whether the employer had failed to provide a safe system of work by not implementing adequate safety measures to prevent such incidents. This involved assessing whether the employer had taken reasonable steps to ensure that employees could safely perform their duties without risking injury.

The court found that the Magistrate's findings of fact were not open to challenge. It was established that the employer had not provided a safe system of work, as there were no adequate safety measures in place to prevent employees from being injured while attempting to remove jammed articles from the conveyor belt. The court also found that the penalty imposed was not excessive, considering the gravity of the breach and the need to deter future non-compliance. Consequently, the appeal against both the conviction and the penalty was dismissed.

The court's decision underscored the importance of employers taking proactive measures to ensure workplace safety, and it affirmed the penalties available under occupational safety and health legislation for non-compliance. The outcome served as a reminder to employers of their obligations to provide a safe working environment and to take reasonable steps to prevent accidents and injuries.

Orders