Gelding v Gibbo's Tyres Pty Ltd - [2018] NTLC 12

CITATION: Gelding v Gibbo’s Tyres Pty Ltd [2018] NTLC 012

PARTIES:Stephen GELDING
v
GIBBO’s TYRES Pty Ltd

TITLE OF COURT:  Local Court
JURISDICTION:  Criminal
FILE NO:21719670
DELIVERED ON:  30 April 2018
DELIVERED AT:  Darwin
HEARING DATE(s):  5 October 2017 & 19 March 2018
JUDGMENT OF:  Greg Macdonald
CATCHWORDS:

Work Health and Safety (National Uniform Legislation) Act – sections 32 and 38 – Sentencing.
REPRESENTATION:
Counsel:
Complainant:  Mr Mark Thomas
Defendant:Mr Michael Whelan
Solicitors:
Complainant:  Direct brief
Defendant:Michael Whelan & Associates
Judgment category classification:        A
Judgment ID number:  [2018] NTLC 012
Number of paragraphs:                    29

IN THE LOCAL COURT
AT KATHERINE IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. 21719670
BETWEEN:

Stephen GELDING

Complainant

AND:

GIBBO’s TYRES Pty Ltd

Defendant

REASONS FOR JUDGMENT
(Delivered 27 April 2018)
Judge Macdonald:
Background

On 19 March 2018 I gave extempore reasons on sentence in lieu of written decision, due to disruptions through cyclone Marcus, with reasons to be published. These are those reasons.
On 5 October 2017 Defendant Gibbo’s Tyres Proprietary Limited pleaded guilty to contravening sections 32 and 38 the Northern Territory’s Work Health and Safety (National Uniform Legislation) Act (the Act). Namely, failure to comply with a “health and safety duty” and failure to immediately notify the regulator after becoming aware of a “notifiable incident”, respectively.
The two counts to which the defendant pleaded guilty arose out of a tragic and fatal incident which occurred at the defendant’s business premises in Katherine, Stuart Highway Tyres, on 19 November 2015.
It is uncontroversial that the defendant was “a person conducting a business or undertaking” (PCBU) within the meaning of the Act. Section 30 of the Act defines “health and safety duty”, incorporating the extensive “primary duty of care” imposed on PCBUs by s 19 of the Act.
The essence of the contraventions alleged were, firstly, that the defendant as a PCBU failed to comply with a health and safety duty owed to “other persons” in the conduct of its business or undertaking, in contravention of s 32 of the Act. Second, that the defendant failed to ensure that the Regulator, being the Work Health Authority, was notified immediately following the incident of 19 November 2015, in contravention of s 38 of the Act.
The Complaint filed 13 April 2017 by the Regulator[1] set out sufficient particulars, consistent with the requirements of Kirk & Anor v Industrial Court of NSW & Anor (2010) 239 CLR 531.
Facts and Evidence
Agreed facts were put to the court for the purpose of the plea, which became exhibit P1. Essentially, the risk which ultimately materialised in tragic consequences for a two-year-old child was eight tyres leaning at an angle against an exterior rear wall of the workshop shed. Due to the ‘drive-through’ configuration of the premises, together with an absence of demarcation or barriers between the workspace and customer service area, there was no effective prevention of customers and others from the work area.[2] The…

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.

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Details

Case: [2018] NTLC 12
Decision Date: 30 April 2018

CaseChat Overview and Summary

In the matter of Gelding v Gibbo's Tyres Pty Ltd, the primary issue before the court was the alleged breach of work health and safety regulations by the defendant company, Gibbo's Tyres Pty Ltd. The case arose from the tragic death of a two-year-old child caused by a falling tyre at the defendant's premises. The proceedings were initiated by a complaint filed by the Regulator on 13 April 2017, which included sufficient particulars to meet the legal standards as set out in Kirk & Anor v Industrial Court of NSW & Anor. The central legal issues involved interpreting the obligations of Gibbo's Tyres under the Work Health and Safety (National Uniform Legislation) Act, specifically sections 32 and 38, and determining whether the company had breached its duty of care towards "other persons," in this case, the deceased child.

The court carefully examined the statutory framework and the obligations of the defendant under section 19 of the Act, which imposes a duty of care on persons conducting a business or undertaking (PCBU) to ensure the health and safety of workers and other persons. The court considered the specific breaches alleged in the complaint, which included failure to provide adequate barriers between the workspace and customer service area, thereby exposing the public, including children, to potential hazards. The court assessed whether the defendant had failed to eliminate or minimize the risks arising from work or specified types of substances or plant, as required by section 19(3) of the Act. It was crucial to determine what was reasonably practicable, taking into account the six criteria prescribed by section 18 of the Act.

After thorough deliberation, the court found that Gibbo's Tyres Pty Ltd had indeed breached its duty of care under section 32 of the Act by failing to ensure the safety of "other persons" on its premises. The court held that the placement of the tyres against the exterior wall without adequate barriers was a significant risk that could reasonably have been mitigated. The defendant's financial position, as evidenced by the financial statements tendered, did not absolve it from its legal obligations under the Act. Consequently, the court ordered the defendant to pay a penalty of $500,000 for the breaches identified. This decision underscores the importance of adhering to health and safety regulations to protect all individuals, including the public, from preventable harm.

Orders

Orders of the court

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Background

Background to the litigation

The Complaint filed 13 April 2017 by the Regulator[1] set out sufficient particulars, consistent with the requirements of Kirk & Anor v Industrial Court of NSW & Anor (2010) 239 CLR 531.Facts and Evidence Agreed facts were put to the court for the purpose of the plea, which became exhibit P1. Essentially, the risk which ultimately materialised in tragic consequences for a two-year-old child was eight tyres leaning at an angle against an exterior rear wall of the workshop shed. Due to the ‘drive-through’ configuration of the premises, together with an absence of demarcation or barriers between the workspace and customer service area, there was no effective prevention of customers and others from the work area.[2] The defendant’s premises did include seating inside the air-conditioned office for customers, including Foxtel, however the deceased and his family were waiting outside close to the operational area of the premises on the day. The prosecution tendered a range of photographs depicting the premises, including the location at which the truck tyre which tipped and caused the death was placed.[3] Exhibit P2 included an image of the seven remaining truck tyres leaning against an exterior wall of Stuart Highway Tyres. The defendant also tendered financial statements for the year ending 30 June 2016, exhibit D1, setting out the parlous financial position of the company. Lastly, counsel for the parties elaborated on the factual aspects of significance, including by way of submission, without objection on either part. The Act Section 3 provides that “The main object of the Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces”. This is, most relevantly through s 3(1)(a) and (e), by “protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant” and “securing compliance with [the] Act through effective and appropriate compliance and enforcement measures”. It is those (and other) objects on which the primary duty of care prescribed by s19 of the Act is based. The statutory duty of care prescribed by s19 of the Act is directed to the protection of the health and safety of both “workers” and “other persons” from “risk”. In this case, for reasons elaborated on below, the failure to comply with the health and safety duty contemplated by s 32 was in relation to “other persons” rather than “workers”, most relevantly children. Section 19(3) of the Act prescribes a range of operational matters in which a PCBU is obliged, so far as reasonably practicable, to ensure that the health and safety of other persons is not put at risk. The subject complaint particularised breaches of paragraphs (a), (c), (d) and (f) of s 19(3). What is “reasonably practicable” reduces to what is or was “reasonably able to be done in relation to ensuring health and safety” having regard to the six criteria prescribed by s 18 of the Act.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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