HENRY WALKER ELTIN CONTRACTING PTY LTD -v- BRIGGS [2002] WASCA 53

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 53
Court:	THE FULL COURT (WA)
Case No:	SJA:1185/2000	Heard:	12 & 13 MARCH 2001
Coram:	KENNEDY J ANDERSON J STEYTLER J WHEELER J GROVE AJ	Delivered:	18/03/02
No of pages:	21	Judgment Part:	1 of 1
Result:	Appeals against conviction and sentencing dismissed
Category:	A
PDF Version

Parties:	HENRY WALKER ELTIN CONTRACTING PTY LTD TORQUIL BRIGGS
Catchwords:	Criminal law Occupational health and safety Failure to provide and maintain a working environment in which employees not exposed to hazards Contravention causing death of employee Criminal law Occupational health and safety Sentencing High risk of serious injury causing death of employee Maximum penalty $200,000 Fine of $75,000 upheld
Legislation:	Mines Safety and Inspection Act 1994, s 9(1)
Case References:	Collins v State Rail Authority of NSW (1986) 5 NSWLR 209 Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150 Broken Hill Associated Smelters Pty Ltd v Stevenson (1991) 42 IR 130 Bunnings Forest Products Pty Ltd v Shepherd, unreported FCt SCt of WA; Library No 980235; 5 May 1998 Byrne v Baker [1964] VR 443 Carcosa Pty Ltd v Czerwaniw as agent for the Department of Health (1997) 93 A Crim R 287 Chugg v Pacific Dunlop Ltd [1988] VR 411 Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 Cullen v State Rail Authority of NSW (1989) 31 IR 207 Farnworth v Henry Walker Contracting Pty Ltd [1999] WASCA 234 Fremantle Steam Laundry Pty Ltd v Shepherd [2000] WASCA 17 Gerakiteys v The Queen (1984) 153 CLR 317 Gorman v Fitzpatrick (1983) 4 NSWLR 286 Haysdale Nominees Pty Ltd v Shepherd (1998) 98 A Crim R 435 Hellier v Hinton [1998] WASCA 332 Henry Walker Contracting Pty Ltd v Farnworth [2000] WASCA 253 Industrial Galvanizers Corporation Pty Ltd v Shepherd [1999] WASCA 282 Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100 John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 Johnson v Miller (1937) 59 CLR 467 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 Meiklejohn v Central Norseman Gold Corporation Ltd (1998) 19 WAR 298 Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482 Morrison v Winton, unreported; SCt of WA (Scott J); Library No 960698; 12 December 1996 Palynolab Resources Pty Ltd v Morrison, unreported; SCt of WA (Ipp J); Library No 960477; 22 August 1996 R v Australian Char Pty Ltd (1995) 79 A Crim R 427 R v F Howe & Son (Engineers) Ltd [1999] 2 All ER 249 R v Hermes; Ex parte Ball (1966) 10 FLR 375 R v Jemielita (1995) 81 A Crim R 409 R v Landy [1981] 1 All ER 1172 R v Maria [1957] St R Qd 512 R v Mok (1987) 27 A Crim R 438 R v Partridge (1930) 30 SR (NSW) 410 Rippingale v The Queen [1999] WASCA 257 Romeo v The Queen (1991) 65…

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 53
Decision Date: 18 MARCH 2002

CaseChat Overview and Summary

The High Court of Australia heard an appeal by Henry Walker Eltin Contracting Pty Ltd against its conviction and sentencing for breaching occupational health and safety laws, which resulted in the death of an employee. The company was found to have failed to provide and maintain a working environment free from hazards, leading to the fatal incident. The appeal contested both the conviction for the breach of the occupational health and safety legislation and the penalty imposed by the lower court.

The legal issues before the court were whether the company had indeed breached the occupational health and safety legislation by failing to maintain a safe working environment, and if so, whether the penalty imposed was appropriate. The court needed to determine if the company had taken all reasonable steps to ensure the safety of its employees and if the penalty was commensurate with the severity of the breach and its consequences.

The court dismissed the appeal, affirming the conviction and the penalty. It found that the company had failed to implement adequate safety measures, which directly contributed to the employee's death. The court upheld the lower court's assessment that the breach carried a high risk of serious injury, which tragically resulted in the employee's death. Consequently, the court considered the fine of $75,000 appropriate, given the maximum penalty allowed under the legislation was $200,000. The appeals against both the conviction and the sentencing were dismissed.

Orders

Orders of the court

Appeals against conviction and sentencing dismissed

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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