HENRY WALKER CONTRACTING PTY LTD -v- FARNWORTH [2002] WASCA 167

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 167
Case No:	SJA:1015/2002	Heard:	24 APRIL 2002
Coram:	WHITE AUJ	Delivered:	24/06/02
No of pages:	43	Judgment Part:	1 of 1
Result:	Appeal allowed and conviction set aside
Category:	A
PDF Version

Parties:	HENRY WALKER CONTRACTING PTY LTD JAMES FARNWORTH
Catchwords:	Appeal against conviction Appellant charged with a breach of the Mines Safety and Inspection Act 1994 Failing to provide and maintain a working environment in which its employees were not exposed to hazards A conveyor belt had broken and workers had stood upon it without having clamped the belt with the result that the belt moved and dislodged two workmen who were injured accordingly It was accepted that the use of belt clamps provided by the appellant would have avoided the accident Evidence of the existence of a Worksafe instruction which, if complied with, would have prevented the accident that occurred Evidence that on previous occasions the clamps required by the Worksafe instruction had in fact been used Whether the guilt of the appellant established beyond a reasonable doubt
Legislation:	Mines Safety and Inspection Act 1994, s 9
Case References:	Bunnings Forrest Products Pty Ltd v Shepherd, unreported; FCt SCt of WA; Library No 980235; 5 May 1998 Cullen v State Rail Authority (NSW) (1989) 31 IR 207 Henry Walker Contracting Pty Ltd v Farnworth [2000] WASCA 253 Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100 Johnson v Miller (1937) 59 CLR 467 Meiklejohn v Central Norsemen Gold Corporation Ltd (1998) 19 WAR 298 Walsh v Tattersall (1996) 70 ALJR 884 Adelaide Timber Co Pty Ltd v Shepherd [2001] WASCA 110 Australian Char Pty Ltd (1995) 79 A Crim R 427 Azzopardi v Q [2001] HCA 25 Collins v State Rail Authority of New South Wales (1986) 4 NSWLR 209 Cullen v State Rail Authority (NSW) (1989) 31 IR 207 Environmental Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 Farnworth v Henry Walker Contracting Pty Ltd [1999] WASCA 234 Ferrari v Neenan [2000] WASCA 191 Geraldton Fisherman's Cooperative Limited v Munro [1963] WAR 129 Widgee Shire Council v Bonney (1907) 4 CLR 977 GJColes & Coy Limited v Goldsworthy [1985] WAR 183 Green v Mabey, unreported; SCt of WA; Library No 940711; 7 December 1994 Hamersley Iron Pty Ltd v Robertson, unreported; SCt of WA; Library No 980573; 2 October 1998 Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 Henry Walker Eltin Contracting Pty Ltd v Briggs [2002] WASCA 53 Kirby v A & M I Hanson Pty Ltd (1994) 55 IR 40 McLean v Tedman (1984) 155 CLR 306 Morrison v Atlas Group Pty Ltd, unreported; SCt of WA; Library No 960698; 12 December 1996 Morrison v Hulme Wool Scouring Company (1938) Pty Ltd, unreported; SCt of WA; Library No 930457; 6 August 1993 Murphy v Morrison, unreported; SCt of WA; Library No 960089; 5 February 1996

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: [2002] WASCA 167
Decision Date: 24 JUNE 2002

CaseChat Overview and Summary

Henry Walker Contracting Pty Ltd, the appellant, appealed against its conviction for breaching the Mines Safety and Inspection Act 1994. The case arose from an incident where a conveyor belt, which had not been properly clamped, moved while workers were standing on it, resulting in their injuries. The central issue before the court was whether the appellant's guilt had been established beyond a reasonable doubt. Specifically, the court had to determine whether the company had failed to provide and maintain a working environment in which its employees were not exposed to hazards.

The legal issues the court needed to decide included the interpretation of the relevant statutory provisions and the assessment of whether the company had taken reasonable steps to prevent the accident. The court considered whether the existence of a Worksafe instruction, which if complied with, would have prevented the accident, constituted sufficient evidence against the appellant. Additionally, the court examined the evidence that on previous occasions, the clamps required by the Worksafe instruction had indeed been used. The crux of the matter was whether the appellant had a duty to ensure that the conveyor belt was properly clamped and whether this duty had been breached, thereby exposing employees to unnecessary hazards.

The court, in allowing the appeal and setting aside the conviction, found that the evidence did not establish the appellant's guilt beyond a reasonable doubt. The court held that while the use of belt clamps would have avoided the accident, there was insufficient evidence to demonstrate that the appellant had failed to take reasonable steps to prevent such an incident. The court concluded that the appellant's actions did not amount to a breach of the statutory duty to provide a safe working environment. Consequently, the appeal was allowed, and the conviction was set aside.

Orders

Orders of the court

Appeal allowed and conviction set aside

Background

Background to the litigation

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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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