Harrison v Kilby

Case [2018] QMC 6

MAGISTRATES COURT OF QUEENSLAND

CITATION: Harrison v Kilby & Anor [2018] QMC 6
PARTIES:

PAUL KEVIN HARRISON

(Complainant)

v

JACOB JOHN ROBERT KILBY

(Defendant) and

SAXON ENERGY SERVICES AUSTRALIA PTY LTD ACN 137 534 993

(Co-Defendant)

FILE NO/S:

MAG-00146814/14(0) MAG-00146844/14(6)
DIVISION: Industrial Magistrates Court
PROCEEDING: Complaint and Summons
ORIGINATING COURT:

Taroom Industrial Magistrates Court
DELIVERED ON: 18 April 2018 (on the papers)
DELIVERED AT: Brisbane
HEARING DATE: 11, 12, 16, 17, 20, 23 October 2017 and 8 December 2017
MAGISTRATE: Magistrate Hay
ORDER:

1.   I find the defendants guilty.

2.   The matters are to be relisted for sentence on a date suitable to the parties.
CATCHWORDS:

INDUSTRIAL LAW – WORKPLACE HEALTH AND SAFETY - PROSECUTION

-   Whether an act was ‘reckless’ – Whether the element of ‘recklessness’ requires ‘conscious disregard of risk’ at the time of the offence – Whether ‘recklessness’ requires ‘conscious disregard’ of the risk at the time of the offence.

- Whether offences under Chapter 9 of the Petroleum and Gas (Production and Safety) Act 2004 are limited to

individuals – If so, whether the legislature intended a corporation to be incapable of committing an offence
under s. 704 of the Petroleum and Gas (Production and Safety) Act 2004 despite s. 840 of that same Act. – If not, whether the co-accused has established a defence under s. 840(3)(a) of the Petroleum and Gas (Production and Safety) Act 2004.
CASES:

Aubrey v R (2017) 343 ALR 538

Banditt v The Queen (2005) 224 CLR 262

R v G [2003] All ER 765

R v IL unreported, [2016] NSWCCA 51

Towle v R (2009) 54 MVR 543
COUNSEL:

J Hunter QC with P Morreau for the Complainant

T Glynn QC with A Scott for the Defendants
SOLICITORS:

Gilshenan & Luton Legal Practice for the Complainant

Norton Rose Fulbright Australia for the Defendants

  1. The defendant, Mr Kilby, was a driller on a drill rig. He caused the death of his fellow workmate, Gareth Leo Dodunski, by activating hydraulic equipment known as an iron- roughneck ST-80 (the ‘act’). He is charged with recklessly doing the act in contravention of s. 704 of the Petroleum and Gas (Production and Safety) Act 2004 (‘PGPS Act’). It is alleged in the complaint that the act, recklessly performed:

    1.was an act that might have adversely affected the safety of a person at the plant, in particular, Mr Dodunski; and

    2.caused Mr Dodunski’s death.1

  2. The co-defendant, Saxon Energy Services Australia Pty Ltd ACN 137 534 993, is charged with the same offence under s. 704 of the PGPS Act on the basis that pursuant to s. 840 of the PGPS Act:

    1.the alleged offence under s. 704 of the PGPS Act is an offence for which it is required to prove Mr Kilby’s state of mind, about particular conduct, namely the act alleged to have been recklessly performed;

    2.Mr Kilby’s conduct was within the scope of the co-defendant’s actual or apparent authority; and

    3.Mr Kilby had the state of mind.

  1. There is no…

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Details
AGLC
Harrison v Kilby [2018] QMC 6
Case
[2018] QMC 6
Decision Date

CaseChat Overview and Summary

The case of Harrison v Kilby involved a dispute under the Petroleum and Geothermal Energy Resources Act 1999 (Qld), concerning workplace health and safety. The defendant, Mr. Kilby, was prosecuted for an incident that occurred at a drilling site, where he was alleged to have acted recklessly, thereby endangering the safety of his colleagues. The court was tasked with determining whether the prosecution had successfully proven that Mr. Kilby's actions were reckless, and if the concept of recklessness required a "conscious disregard" of the risk at the time of the offence. The prosecution argued that merely having a foresight of the potential risk was sufficient, while the defence maintained that a conscious disregard of the risk was necessary.

The court examined the statutory definition of recklessness and the existing case law that interpreted similar provisions. The key legal issue was interpreting the word "recklessly" as it applied to the statutory offence, specifically whether it required a conscious disregard of the risk. The court considered the submissions from both the prosecution and the defence, where the prosecution contended that foresight of a risk was sufficient, while the defence argued for a conscious disregard of the risk. The court concluded that the statutory context allowed for a lower threshold for proving recklessness, requiring only the foresight that the act might possibly affect safety, without needing to establish a conscious disregard of the risk.

In reaching its decision, the court found that the prosecution had proved beyond reasonable doubt that Mr. Kilby's actions were reckless. The court emphasised that the requirement was not for a state of indifference or conscious disregard, but rather an appreciation that the act might possibly affect someone's safety. This interpretation aligned with the statutory context and the lower threshold for proving recklessness in the absence of a specific definition. The court found Mr. Kilby guilty and scheduled a relisting for sentencing to allow for appropriate consideration of the offence and its consequences.

Orders

Orders of the court

1. I find the defendants guilty.

2. The matters are to be relisted for sentence on a date suitable to the parties.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Evidence of Mr Jarrod Dixon, who was the derrickhand inside the doghouse with Mr Kilby and Mr Marshall at the time of accident: Mr Dixon gave evidence that prior to the incident on 23 June 2013 there was a practice of communication between the people on the drill floor and the driller in the doghouse concerning the operation of the ST-80. He said “Yep. There was positive communication, like, body language and you would see the person on the E-stop or engaging the E-stop and giving the thumbs up. Yep… It was 99 percent of the time”82 Mr Dixon gave evidence that he seen or heard people on the drill floor being spoken to about the use of the ST-80 E-stop: When asked in evidence in chief whether he could recall Mr Kilby saying anything regarding non-use of the E-stop he said: When asked about the extent to which Mr Dodunski would observe practices like pushing the E-stop he said “He was the man, yeah… He was a good foreman. He knew his job well and he was trying to do everything properly.”85 The word ‘recklessly’ is not defined in the PGPS Act. The concept of recklessness has been the subject of extensive consideration by courts, often in the context of offences involving an intention to cause harm, e.g. murder or grievous bodily harm. Some of the court decisions pertaining to the use of the word involve a statutory framework that includes a definition of the word. It is important to observe that the offence before this court does not include an element of intention to cause or do harm to either person or property. The defence submits that the prosecution bears the onus of proving, beyond reasonable doubt, that when Mr Kilby activated the ST-80 (the ‘act’) he did so with foresight that the act “might adversely affect the safety of anyone at the plant.” i.e. at the time of doing the act Mr Kilby foresaw a risk/s to any person and that Mr Kilby consciously disregarded the risk/s. 86 [my emphasis] The defence submission was developed in a way that contended that ‘conscious disregard’ was synonymous with subjective foresight of a possible risk.87 Ultimately it was framed as “the requirement for subjective foresight is a requirement that there be a conscious disregard of the risk.”88 The prosecution agrees that it must prove that Mr Kilby did the act with foresight that the act could possibly (not would probably) affect the safety of anyone at the plant.89 The prosecution rejects the second limb of ‘conscious disregard’ promoted by the defence as an element the prosecution must prove to establish recklessness within the meaning of that word as it applies to this offence.90 The prosecution concedes that if the defendant didn’t turn his mind to the possibility of risk before activating the ST-80, his conduct couldn’t be found to be reckless.91 But they submit that, in the present statutory context, the test to be applied to the word ‘recklessly’ has a low threshold and it would be sufficient for the prosecution to prove that at the time of the act Mr Kilby did have an appreciation that what he was doing might possibly affect somebody’s safety. 92“We say, consistently with Aubrey, it’s not required that he have a state of indifference or that there be a conscious disregard. All that’s required… is that spark of cognition that pushing that button might possibly adversely affect somebody’s safety.”93

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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