Garaty v Uniting Church in Australia Property Trust
[2011] QMC 26
•27 April 2011
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Garaty v Uniting Church in Australia Property Trust [2011] QMC 26
PARTIES:
NEALE GARATY
(complainant)
v
UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (Q) [ABN 142 498 780] T/as (Blue Care)
(defendant)
FILE NO/S:
MAG157570/10(2)
DIVISION:
Industrial Magistrates Court
PROCEEDING:
Application for directions
ORIGINATING COURT:
Industrial Magistrates Court at Beenleigh
DELIVERED ON:
27 April 2011
DELIVERED AT:
Beenleigh
HEARING DATE:
28 February 2011
MAGISTRATE:
McDougall JA
ORDER:
I allow the application in so far as the need to provide particulars of 4(a) and 4(b) of the complaint. I make orders in terms of the draft orders amended by me in paragraphs 2(a), 2(b) and 2(d).
I order the complainant to provide further and better particulars in accordance with paragraph 2(c) of the draft order amended and signed by me.
I also make orders in terms of paragraphs 3, 4 and 5 of the draft order and as I said I allow the complainant fourteen days in which to comply with the provision of the particulars.
I decline to make the order sought in paragraph 1 of the draft order and I have struck it out.
I order the complainant to pay the applicants costs incidental to the application to be agreed, or failing agreement to be fixed by the Court.
CATCHWORDS:
INDUSTRIAL LAW – OFFENCES – application for directions – whether further and better particulars of offence are required
COUNSEL:
J Hunter for complainant
P Ambrose for defendant
SOLICITORS:
Reasons for Judgement
The Uniting Church in Australia Property Trust (Q) provided aged care facilities and services to residents in care at premises known as Urana Hostel at Springwood. It had in its care a woman in frail health named Pauline KIRYK.
On 19 August 2009 at Springwood Pauline Kiryk was severely injured when she fell from her wheel chair and suffered serious head injuries and she subsequently died. This incident has given rise to a prosecution under the Workplace Health and Safety Act 1995 (“the Act”) in which it is alleged that the applicant “being a person on whom a workplace health and safety obligation described in section 28(1) of the Act is imposed, did fail to discharge the obligation contrary to section 24 of the Act.
The complaint is particularised relevantly as follows:
(1)……
(2)The defendant’s business or undertaking includes provision of aged care facilities and services to residents in care, in particular at premises known as Urana Hostel, [address].
(3)And “other”, as that term is used in the Act, namely Pauline Kiryk was exposed to risks to her health and safety arising out of the conduct of the defendant’s business or undertaking.
(4)The hazard is:
(a)Allowing a resident to mobilize in a wheelchair without any or any adequate controls in place to prevent tipping or falling;
(b)Placing a resident in a wheelchair in a parked position without adequate supervision.
(5)The risk that may result from the hazard was the risk of injury or death to Pauline Kiryk in that workplace.
A circumstance of aggravation is alleged in the complaint in that the breach caused the death of Pauline Kiryk. Under section 24 of the Act if that circumstance of aggravation is made out it has the effect of increasing the monetary penalty which can be imposed upon the applicant by 25%.
The applicant applies under section 83A of the Justices Act for directions that the complainant provide further and better particulars of the complaint in particular, further and better particulars of paragraphs 4(a) and 4(b) referred to above.
The particulars sought by the applicant are as follows:
(1)In relation to paragraph 4(a) of the complaint particulars of:
(i)the alleged deficiency or deficiencies in the relevant control measures in place at the time of the incident;
(ii)the control measures or further control measures, identifying which in each case, it is alleged would have been adequate to:-
(a) Prevent tipping or falling identifying which in each case;
(b)Minimise tipping or falling identifying which in each case;
(iii)Sufficient particulars to identify if the hazard was allowing any resident or a particular resident, to mobilize without the alleged controls in place to prevent tipping or falling.
b.In relation to paragraph 4(b) of the Complaint particulars of:-
(i)Sufficient particulars to identify if the hazard was allowing any resident or a particular resident, to be placed in a wheelchair in a parked position without adequate supervision.
(ii)If the act or omission (identifying in each case the act or omission) in support of the allegation that Mrs Kiryk was not adequately supervised;
(iii)The precise level of supervision it is alleged would have been adequate to discharge the relevant obligation including particulars of:
(a)The number of supervisors for seven residents on the outing which ended in the accident;
(b)The qualifications of the supervisors;
(c)The duties of the supervisors;
c.In relation to the alleged circumstances of aggravation provide particulars of how and in what manner the alleged breach caused the death of Pauline Kiryk.
The complainant maintains that his complaint is sufficiently particularised in paragraphs 4(a) and 4(b). The application submits that paragraph 4(a) and 4(b) are mere assertions as opposed to being particulars of the complaint.
Section 28 of the Act provides relevantly as follows:
28 Obligations of persons conducting business or undertaking.
(1)A person (the relevant person) who conducts a business or undertaking has an obligation to ensure the workplace health and safety of the person, each of the person’s workers and any other persons is not affected by the conduct of the relevant persons business or undertaking.
(2)The obligation is discharged if the person, each of the person’s workers and any other person's are not exposed to risks to their health and safety arising out of the conduct of the relevant persons business or undertaking.
Section 29 of the Act provides:-
29 What obligations under section 28 include.
Without limiting section 28, discharging an obligation under the section includes, having regard to the circumstances to any particular case, doing all of the following:
(a)Providing and maintaining a safe and healthy work environment;
(b)Providing and maintaining safe plant;
(c)Ensuring the safe use, handling, storage and transport of substances;
(d)Ensuring safe systems at work;
(e)Providing information, instruction, training and supervision to ensure health and safety.
The complainant maintains and the applicant accepts that the provisions of the Act[1] have the effect of reversing the onus of proof in that once the complainant proves beyond a reasonable doubt that a death or injury to a person has occurred in the workplace as contemplated in section 28 a prima facie case is made out.
[1] Section 37
Section 37 provides relevantly as follows:-
37 Defences for Div 2 or 3
(1)It is a defence in a proceeding against a person for a contravention of an obligation imposed on the person under Division 2 or 3 for the person to prove –
a.If a regulation or ministerial notice has been made about the way to prevent or minimize exposure to a risk – that the person followed the way prescribed in the regulation or notice to prevent the contravention; or
b.If a code of practice has been made stating a way or ways to manage exposure to a risk –
(i) That the person adopted and followed a stated way to prevent the contravention; or
(ii) That the person adopted and followed another way to manage that exposure to the risk and took reasonable precautions and exercised proper diligence to prevent the contravention; or
(iii) If no regulation, ministerial notice or code of practice has been made about exposure to a risk – that the person chose any appropriate way and took reasonable precautions and exercised proper diligence to prevent the contravention.
(2)Also, it is a defence in a proceeding against a person for an offence against Division 2 or 3 for the person to prove that the commission of the offence was due to causes over which the person had no control.
(3)……
While acknowledging that it bears the onus of proof in it’s defence of the charge, the applicant maintains that it is still entitled to particulars of the complaint and relies upon the decision of the High Court of Australia in Kirk and another -v- WorkCover Authority of New South Wales[2] in the decision of Boddice J in NK Collins Industries Pty Ltd –v- President of the Industrial Court of Queensland and another[3].
[2] [210] HCA 1
[3] [2010] QCS 373
In Kirk the High Court of Australia gave an emphatic reminder of a prosecutor’s common law obligation to provide particulars[4]. It said, “The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also the particular Act, matter or thing alleged as the foundation of the charge. In John L Pty Ltd –v- The Attorney General (NSW) it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed. In more recent times the rational of that requirement has been seen as lying in the necessity of informing the Court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet. The common law requirement is that an information, or an application containing a statement of offences, “must at least condescend to identifying the essential factual ingredients of the actual offence”. These facts need not be as extensive as those which a defendant might obtain on an application for particulars. In Johnson –v- Miller, Dixon J considered that an information must specify “the time, place and manner of the defendant’s acts or omissions”. McKennan J referred to the requirements of “fair information and reasonable particularity as to the nature of the offence charged’ (footnotes omitted).
[4] Kirk Para 26
It is acknowledged that the High Court was referring to the New South Wales equivalent Act and was considering whether or not the complaint itself was sufficiently particularised to validate it. However the statement of principal applies to the matters under consideration here. As Boddice J said in NK Collins[5] “A defendant to any prosecution is entitled to be apprised, not only of the legal nature of the offence charged, but also the particular Act, matter or thing alleged as the foundation of the charge. Essential particulars include “the time, place and manner of the defendant’s acts or omissions”. This requirement is consistent with the definition of “offence” in the Criminal Code (Qld) as it is the “act or omission which renders the person doing the act or omission liable to punishment” which is “an offence”.
[5] Paragraph 17
The complainant acknowledges this common law obligation to particularise the complaint in an appropriate case. He relies on paragraphs [21 – 23] of Boddice J’s judgment in NK Collins:- [21] “Section 37 of the WH&S Act provides that a defendant may defend in a proceedings for the contravention of an obligation imposed on that defendant by providing specified matters to prevent, minimise or manage exposure to a risk. Exposure to risks are to be managed having regard to the provisions of s 27A of the WH&S Act. That section mandates what a person must do to properly manage exposure to risks but provides:
(3)However, this Act also specifies particular ways in which workplace health and safety must be ensured in particular circumstances.
(4)Compliance with subsection (1) does not excuse a person from an obligation to ensure workplace health and safety or a particular obligation imposed on the person under this Act.”
22.The complaint identified the risk and the source of that risk. There was no obligation on the prosecutor to particularise anything further to found a valid complaint. However, that does not mean the prosecutor cannot be required, in an appropriate case, to particularise the applicable code of practice or other measures it asserts ought to have been taken by the employer if such particulars are necessary to apprise a defendant of the case it has to answer. For example, where there are conflicting codes of practice that may be applicable to the factual circumstance. The provision of such particulars in that event would be on the grounds of procedural fairness, not because they were necessary matters for the prosecutor to aver to found a valid complaint.
23.Contrary to the findings of the first respondent, the ordering of particulars of such matters, in an appropriate case, would not constrain the defendant in it’s defence of that complaint. A provision of such particulars informs the defendant of the respects in which it is contended by the prosecution that it failed to manage exposure of the risks as required under the WH&S Act. If the defendant, in mounting a defence pursuant to s 37 of the WH&S Act, asserts those measures were not required to be taken by it because it adopted another more appropriate way to manage exposure of the risk, it may assert that contention as part of it’s defence.”
As I have said, the complainant maintains that this is not ‘an appropriate case’ for the provision of particulars. Put simply, he says that the applicant, through its officers well knew of the circumstances surrounding the injury and subsequent death of the deceased. The applicant knew what measures it had taken or not taken as the case may be, to manage exposure to the risk. It should, in accordance with it’s obligations under the Act, know what measures it should or should not have put in place, in particular under the codes of practice applicable to its industry. The complainant says further it has complied with its obligations to provide particulars if any, by making available to the applicant the Plant Code of Practice 2005 and the Risk Management Code of Practice 2007.
In response to this argument the applicant referred to the decision of the Full Court of Queensland in Cochran –v- Price, ex parte Price[6]. In his judgement in that case Philp J referred to an unreported decision of the High Court in Trautwein –v- Official Receiver. He said at 129:-
“In the unreported case in the High Court of Trautwein –v- Official Receiver, Trautwein was served with a notice of motion for his committal under section 76 of the Bankruptcy Act. He applied to the Bankruptcy Court for an Order for Particulars, but the Judge refused the Order upon the ground that the applicant knew with what he was charged, since all the evidence to support the charge had been taken in prior bankruptcy examinations. On appeal the High Court unanimously held the Judge to be wrong; and Stark J, after pointing out that the charge was semi criminal said that the respondent is entitled to know precisely what he is charged with. I think it is a shocking thing to give a notice in these general terms and then insist upon it.
I have mentioned this case to show how deeply implanted is the rule that in a criminal case a man is entitled to have the charge made with precision and certainty, either in the indictment itself or by way of particulars.”
[6] 1943 State Reports Queensland 122 @ 129-130
It is not for the complainant to assume what knowledge the applicant may have. That is not the issue and is not an answer to the duty to provide of particulars of a charge.
Referring back to NK Collins as to whether or not this is “an appropriate case” - in using the words “appropriate case” I think all His Honour was referring to is a case where insufficient particulars have been provided. He, with respect, is not making any reference to or drawing any distinction in cases where the onus is reversed.
The complainant contends that the particulars it has provided in paragraphs 4(a) and 4(b) sufficiently “identified the obvious hazards associated with the use of the wheel chair, that is, that it might tip over if not properly configured and / or if its use was improperly supervised”. It is contended that the applicant has a clear understanding of the case that it has to meet.
The applicant on the other hand submits that it is uncertain as to the case it has to meet. It says that that uncertainty can be resolved by the provision of the particulars sought in the application. The applicant sets out in its argument what it says are inconsistencies in the available evidence which make it impossible for it to know with any precision, what case it has to meet. It submits that by simply providing the Plant Code of Practice and the Risk Management Code of Practice, which together contain a great many provisions that apply broadly across industry, does not satisfy the need to provide particulars. If anything, it compounds the problem confronting the applicant in not knowing the case it has to meet. Where does the defence case start and, equally important, where does its case end? I find that this argument has merit. It is a somewhat disingenuous approach to say simply – here are the Codes, you work it out. We, the prosecution, will let you know at the close of your case whether or not you have covered all the possibilities.
Having considered the decision in Kirk and NK Collins and the legislation I allow the application in so far as the need to provide particulars of 4(a) and 4(b) of the complaint. I make orders in terms of the draft orders amended by me in paragraphs 2(a), 2(b) and 2(d). The parties will note that I have amended the draft order to allow fourteen (14) days for compliance with the order rather than the two days set out in the draft order submitted by the applicant.
I turn now to the request for particulars of the circumstance of aggravation. The same principles apply to the consideration of this request. The onus of proving that the death was caused by the applicants breach rests on the complainant. There is no reversal of the onus. The deceased was in frail health prior to the incident and her prognosis prior to the accident was grim. She died some time after the accident in hospital. I order the complainant to provide further and better particulars in accordance with paragraph 2(c) of the draft order amended and signed by me.
I also make orders in terms of paragraphs 3, 4 and 5 of the draft order and as I said I allow the complainant fourteen days in which to comply with the provision of the particulars. I have made this order self executing as I note that the incident occurred on 19 August 2009 and the complaint was filed on 17 August 2010. The applicant first sought particulars on 30 September 2010.
Turning now to the order sought in paragraph 1 of the draft order, namely that the complainant elect to proceed with either paragraph 4(a) or with paragraph 4(b) of the complaint. The applicant argues that these allegations are inconsistent and duplicitous. The applicant argues that it could comply with one or other of 4(a) or 4(b), but not with both.
The complainant argues that the applicant is alleged to have breached a single continuing obligation and that it is possible to concurrently breach that obligation in a number of ways. It is also submitted that subsection 164(2) of the Workplace Health & Safety Act expressly contemplates that multiple contraventions of an obligation may be charged in a single count, provided the acts or omissions giving rise to the claimed contravention happened within the same period at the same workplace. I find that paragraphs 4(a) and 4(b) of the complaint are not inconsistent but simply indicate two possible breaches. I decline to make the order sought in paragraph 1 of the draft order and I have struck it out.
I order the complainant to pay the applicants costs incidental to the application to be agreed, or failing agreement to be fixed by the Court.
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