Guerini v Shepherd

[2002] WASCA 115

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   GUERINI -v- SHEPHERD [2002] WASCA 115

CORAM:   WHEELER J

HEARD:   2 MAY 2002

DELIVERED          :   15 MAY 2002

FILE NO/S:   SJA 1009 of 2002

BETWEEN:   CLETO MAURO GUERINI

Appellant

AND

TANYA GAI SHEPHERD
Respondent

Catchwords:

Turns on own facts

Legislation:

Occupational Health and Safety Regulations 1996, reg 3.59(a), reg 1.13

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr M D Cuerdon

Respondent:     Mr D J Matthews

Solicitors:

Appellant:     Tottle Christensen

Respondent:     State Crown Solicitor

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

Nil

Case(s) also cited:

Nil

1. WHEELER J: The appellant was charged that being an employer at a workplace he failed to ensure that all electrical "installations" at the workplace were maintained so as to minimise the risk of electrical shock or fire, contrary to reg 3.59(a) of the Occupational Safety and Health Regulations 1996 ("the Regulations").  The "electrical installation" was a handheld drop‑saw, which was found at an inspection of the workplace to have its lead damaged and covered with electrical tape.  It appears that the outer sheath of the lead had been melted during the course of its use and that by way of makeshift repairs the user of the saw had wound plastic insulation tape around the cord, applying more when that melted.  His Worship found as a fact that once the lead of the drop‑saw had melted, even after the application of the insulation tape, it was not in such a state that the risk of electrical shock or fire had been minimised.  He found that no clear instructions had been given to the user and that there was no procedure in place for taking the defective saw out of use immediately and ensuring that it was repaired.

2. The two grounds of appeal are:  first, that the drop‑saw was not an electrical installation; and second that the appellant did not fail to ensure its lead was maintained so as to minimise the risk of electrical shock or fire.  The second ground depends on two propositions.  The first of those propositions is that his Worship found that the failure to maintain consisted entirely in the absence of a clear instruction or procedure for taking it out of use immediately it became damaged.  The second proposition is that it is to unduly strain the word "maintain" to find that it includes a failure to ensure an appliance is taken out of use immediately it becomes defective.  So far as the first of these propositions is concerned, his Worship certainly found that there was no such instruction or procedure.  However, it seems to me clear from his reasons that his Worship would have regarded such an instruction or procedure, instituted for the purpose of ensuring that timely and regular repairs were effected, as part of a system of maintenance.  That is, it seems to me that his Worship found that there was no system of maintenance, but merely an assumption that employees would use their "common sense", and as part of that finding his Worship indicated that taking defective appliances out of use would have been a first step generally expected in such a system.  So far as the second proposition is concerned, to "maintain" is to take action to preserve in good order and condition.  It appears from the evidence and from his Worship's findings that there was no system for ensuring that the drop‑saw was preserved in good working order and/or condition.  Given those facts, it seems to me to have been entirely open to his Worship to have found that, provided the drop‑saw was an electrical installation, there was a failure to ensure that it was maintained so as to minimise the risks referred to in reg 3.59.

3. The more difficult question is the issue of whether the drop‑saw was an electrical installation. The term "electrical installation" is not defined in the Regulations. It was apparently accepted on all sides at the trial of this matter that it is a "technical term". Therefore, by reason of reg 1.13, it has the meaning ordinarily ascribed to it in the industry in relation to which the term is used.

4. Two expert witnesses were called in relation to this issue, they being Mr White who gave evidence for the respondent and Mr Cottrell who gave evidence for the appellant.  His Worship preferred the evidence of Mr White and the appellant did not challenge that general finding.  This is not surprising, given that Mr White was a senior electrical inspector with 30 years overall experience, a licensed electrical worker holding an Associate Diploma in Occupational Health and Safety.  Mr Cottrell was an electrical fitter, licensed electrician and mechanic.  He was the managing director of a company with about 18 years experience and qualifications working in the business of electrical repairs and maintenance.  Mr White's qualifications and the range of his experience in the industry appeared to be somewhat superior to those of Mr Cottrell, and that was the view which his Worship formed.  His Worship found him a "persuasive, knowledgeable and sincere witness".  However, the appellant submits that even if the evidence of Mr White is accepted, his Worship should not have accepted that the drop‑saw was an electrical installation.

5. The principal thrust of the appellant's submission is that Mr White's evidence was that he relied upon the relevant Australian Standard in order to reach the view that the drop‑saw was an electrical installation.  It is then argued that on a proper construction of that Standard, it is incapable of supporting the view that this drop‑saw was an electrical installation.  The relevant definition is in par 0.5.54 of AS3000‑1991, which defines "installation" as:

   "All the electric wiring, accessories, fittings, consuming devices, control and protective gear and other equipment associated with the wiring situated in, on or beyond any building, structure or premises to which electricity is supplied ... "

   To summarise the competing views, it seems that Mr Cottrell was of the view that only permanently installed items such as perhaps light fittings or ovens were sufficiently "associated with the wiring" to constitute installations.  Mr White was of the view that any electrical device which was capable of being plugged into the wiring would be a "consuming device" and its relevant association with the wiring came from either the fact of its being plugged in or from its potential to be plugged in when it was on the relevant premises.

6. It does appear to me that, on its face, Mr Cottrell's view of the meaning of the Australian Standard is the more plausible of the two.  However, it is also my view that Mr White's evidence was not that he was of the view that the drop‑saw was an electrical installation simply because the relevant Australian Standard said so, but that it was his view that the majority view within the industry was to the effect that the drop‑saw would be considered an electrical installation.  It is not entirely clear from his evidence whether his reason for saying this was that that was an industry view independent of the Australian standard, or that the industry took what one might regard as a somewhat loose understanding of the standard; but in my view it does not matter which of these is the case.  Whatever the source of the view, provided that the majority view within the industry is that the drop saw is an electrical installation, then reg 1.13 would apply to it.

7. There were also portions of Mr White's evidence in which, read in isolation, it was not entirely clear whether he was purporting to speak for the majority of those in the industry or not.  However, it seems to me that he was of the view that the majority of those in the industry would take the view that a drop‑saw was an electrical installation at least when it was plugged into the wiring of the premises, but that some doubt might arise either when it was not plugged in or perhaps when it had been removed from the premises by, for example, being taken outside.  Again, in my view it does not matter which of these views is adopted.  Although the drop‑saw was not plugged in at the time of inspection, it is clear from his Worship's findings on the evidence that it had, on the relevant day, been used by being plugged into the wiring at the premises; his Worship expressly found that the saw was used for about two hours on the day in question.  On any reading of Mr White's evidence, then, it appears that he was of the view that the majority of those in the industry would at that time have regarded it as forming part of an electrical installation.

1. Some argument in this matter was also directed at reg 4.47, which imposes an obligation to remove damaged electrical plant from use.  It seems clear, without having to resort to industry usage, that a portable drop‑saw would constitute electrical plant.  It also does appear, as the appellant argued, that the obligation in reg 4.47 would have applied in the present instance.  However, the mere fact that some other regulation might have been more appropriate does not have the result that reg 3.59 cannot be construed as also applying to the facts of this case.  It is not unusual for obligations to overlap, particularly where a detailed statutory regime is set up directed at various aspects of safety in the workplace.  In my view, it was open to his Worship both to prefer the evidence of Mr White and to form the view that that evidence led to the conclusion that the drop saw was to be regarded as an electrical installation.  Once those conclusions were reached, it was open to him to convict the appellant, and there is no basis upon which that conviction should be quashed.  I would therefore dismiss the appeal.