HWE Mining Pty Ltd v Robertson
[2015] WASCA 26
•12 FEBRUARY 2015
HWE MINING PTY LTD -v- ROBERTSON [2015] WASCA 26
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 26 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:31/2014 | 17 SEPTEMBER 2014 | |
| Coram: | BUSS JA MURPHY JA MAZZA JA | 12/02/15 | |
| 41 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | HWE MINING PTY LTD ANTHONY ROBERTSON |
Catchwords: | Prosecution of employer Alleged failure so far as practicable to provide at a mine a working environment in which employees not exposed to hazards Fatality at mine site Hazard Collision between mining truck and light vehicle at intersection at mine site Acquittal by magistrate Appeal by prosecution to primary judge on basis that magistrate had misapplied s 9(1) of the Mines Safety and Inspection Act 1994 (WA) and on basis of alleged error of fact Primary judge allowed appeal Whether primary judge erred in finding that magistrate had misapplied the statute and erred in fact |
Legislation: | Magistrates Court Act 2004 (WA), s 31 Mines Safety and Inspection Act 1994 (WA), s 4, s 9, s 9A, 9A(2)(a)(ii) Occupational Safety and Health Act 1984 (WA), s 19(1) Road Traffic Code 2000 (WA) |
Case References: | Caledonian Collieries Ltd v Speirs [1957] HCA 14; (1957) 97 CLR 202 Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249 Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 McLean's Roylen Cruises Pty Ltd v McEwan [1954] HCA 43; (1954) 54 ALR 3 Robertson v HWE Mining Pty Ltd [2014] WASC 11 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HWE MINING PTY LTD -v- ROBERTSON [2015] WASCA 26 CORAM : BUSS JA
- MURPHY JA
MAZZA JA
- Appellant
AND
ANTHONY ROBERTSON
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : ALLANSON J
Citation : ROBERTSON -v- HWE MINING PTY LTD [2014] WASC 11
File No : SJA 1018 of 2013
Catchwords:
Prosecution of employer - Alleged failure so far as practicable to provide at a mine a working environment in which employees not exposed to hazards - Fatality at mine site - Hazard - Collision between mining truck and light vehicle at intersection at mine site - Acquittal by magistrate - Appeal by prosecution to primary judge on basis that magistrate had misapplied s 9(1) of the Mines Safety and Inspection Act 1994 (WA) and on basis of alleged error of fact - Primary judge allowed appeal - Whether primary judge erred in finding that magistrate had misapplied the statute and erred in fact
Legislation:
Magistrates Court Act 2004 (WA), s 31
Mines Safety and Inspection Act 1994 (WA), s 4, s 9, s 9A, 9A(2)(a)(ii)
Occupational Safety and Health Act 1984 (WA), s 19(1)
Road Traffic Code 2000 (WA)
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : Mr M Zilko SC & Mr P Mendelow
Respondent : Mr G Tannin SC & Mr A Shuy
Solicitors:
Appellant : K & L Gates
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Caledonian Collieries Ltd v Speirs [1957] HCA 14; (1957) 97 CLR 202
Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361
Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
Manonai v Burns [2011] WASCA 165
McLean's Roylen Cruises Pty Ltd v McEwan [1954] HCA 43; (1954) 54 ALR 3
Robertson v HWE Mining Pty Ltd [2014] WASC 11
1 BUSS JA: I agree with Murphy JA.
MURPHY JA:
Introduction
2 This is an appeal against a decision of Allanson J. The learned primary judge had granted leave to appeal, and had upheld certain grounds of appeal, against a decision of Magistrate Wheeler dated 15 January 2013. Magistrate Wheeler had entered a verdict of acquittal in favour of the present appellant (HWE) in relation to a prosecution of HWE arising from the death of an employee at HWE's mine site in a motor vehicle collision at an intersection on 4 September 2008. The prosecution was brought pursuant to s 9(1) and s 9A(2) of the Mines Safety and Inspection Act 1994 (WA) (the Act).
3 In broad terms, the primary judge held that, essentially, the magistrate had erred in law, and, in one respect, in fact. His Honour remitted the matter for retrial in the Magistrates Court by a different magistrate. It is against that decision that HWE appeals to this court. Leave to appeal had been previously granted in respect of grounds 1, 2 and 3. Grounds 4, 5 and 6 require leave to appeal.
4 There is no notice of contention or cross-appeal.
The appeal to the primary judge
5 There were originally 22 grounds of appeal before Allanson J, although in the course of the hearing of the appeal ground 22 was not pressed. The grounds of appeal were prolix and there was a degree of overlap and repetition within them. His Honour construed the grounds as principally alleging, in effect, that the magistrate's reasons disclosed a pervasive error of law, having regard to the way in which the magistrate addressed, and had failed to address, evidentiary matters in the case. Both parties in the appeal to this court accepted, in effect, that his Honour had approached the appeal on the basis that the overarching allegation was that, on the proper construction of the magistrate's reasons, it was to be inferred that he had misdirected himself as to, and/or had misapplied, the relevant statutory test (appeal ts 7 - 9, 47). As senior counsel for the respondent put it in this appeal:
What we did [in the appeal before Allanson J] is raise the general grounds 1 and 2 [concerning the overarching error] and then the other grounds are basically particulars of those (appeal ts 47).
6 On this overarching point, his Honour allowed the appeal from the magistrate's decision, with respect to grounds 1, 2, 8, 11 – 12, 14, 16 and 17. His Honour also allowed ground 13 on the basis that the magistrate had erred in fact in finding that the intersection was not hidden.
7 It is convenient to observe here that the respondent did not allege in the appeal to Allanson J that the magistrate had failed to provide adequate reasons for his decision, or that the magistrate's reasons had failed to satisfy the requirements of s 31 of the Magistrates Court Act 2004 (WA). Also, ground 22, in effect, alleged that the magistrate's decision in failing to convict was unreasonable and not justified by the evidence. However, ground 22 was not pressed by the respondent at the hearing before Allanson J (27/06/13, ts 160 - 161). Accordingly, it was not contended in the end before Allanson J, that his Honour was himself in a position to enter a judgment for conviction on the materials in the appeal.
The principal issue
8 The grounds of appeal are set out later in these reasons. It is convenient to note at the outset that the principal issue before Allanson J was, and in this appeal is, whether, on the proper construction of the magistrate's reasons, it is to be inferred that the magistrate misapplied, or misdirected himself as to the meaning and effect of, s 9 of the Act on its proper construction.
General background
9 In these reasons, references to paragraph numbers are to paragraph numbers in Allanson J's reasons unless otherwise indicated: Robertson v HWE Mining Pty Ltd [2014] WASC 11. References to the magistrate's reasons are prefaced by the letter 'M'.
10 Section 9 of the Act is set out later in these reasons.
11 The deceased was a 19-year-old apprentice diesel fitter. He worked in the workshop area of HWE's mine (BB 181). Whilst he was allowed to drive vehicles within the workshop, he did not have a 'pit permit' for driving vehicles in the mine pit (M8 - M9). On 4 September 2008, his duties were to wash certain mining equipment at the wash pad adjacent to the workshop area. Without authorisation and contrary to express instructions, he drove down to the pit area of the mine in a light vehicle where a bulldozer had broken down (M7). In returning to the workshop, he drove in a north-westward direction along the Flood Bund Road (the FB road).
12 There was a T-intersection where the Iowa ROM Road (the Iowa road) met the FB road. There was a give way sign at the Iowa road where it intersected with the FB road, which was directed to vehicles turning into the FB road from the Iowa road.
13 At about 3.00 pm on 8 September 2008, a haul truck drove up the Iowa road and approached the T-intersection. The haul truck turned right into the FB road without seeing the deceased's light vehicle. The deceased's vehicle was crushed by the haul truck and the deceased was killed as a result.
14 The haul truck in question was a Caterpillar 789C, approximately 11 m long, 6.9 m wide and 5.5 m high [30]. Trucks of that nature had 'blind spots'. They were left-hand drive vehicles with a substantial A-pillar obscuring the view to the right [31].
15 There were other vehicles at or near the intersection on that occasion. There was a haul truck, driving ahead of the deceased's vehicle, which turned left into the Iowa road. The driver of that haul truck had not noticed the deceased's vehicle behind him. There was also a haul truck coming in the opposite direction along the FB road. The driver of that vehicle observed that the haul truck that was approaching the intersection from the Iowa road would likely have time to turn into the FB road ahead of him, and he thereby watched carefully for that (M12 - 13).
16 The Road Traffic Code2000 (WA) was applied as the traffic regulation rules on the roads in the mine site (M9).
17 The magistrate found that the cause of the accident was inadvertent error by the driver of the haul truck turning right into the FB road, probably as a result of his vision being obscured by the haul truck in front of the deceased's vehicle which was turning left into the Iowa road, or by the A-pillar of his own truck (M23).
The prosecution of HWE
The charge and the particulars
18 The primary judge referred to the charge against HWE and the particulars of the charge [6], [9]. As his Honour observed, the charge against HWE was in the following terms:
[O]n 4 September 2008 at Yandi Mine, being an employer at a mine, [HWE] failed so far as it was practicable to provide and maintain at the mine a working environment in which its employees were not exposed to hazards, and that by that contravention it caused the death of [the deceased] [6].
19 Also as his Honour noted, the prosecution provided particulars of the alleged failure by HWE to provide a working environment in which its employees were not exposed to hazards.
20 The particulars were that HWE failed:
(a) to ensure that the Iowa Road was positioned at 90 degrees, or as close as possible thereto, to the FB road;
(b) to ensure that visibility at the intersection was not obstructed, disrupted or otherwise impaired by vegetation or bunding;
(c) to ensure that stop signs were installed at the intersection;
(d) to ensure that advance intersection warning signs were installed on the FB road approaches to the intersection;
(e) to ensure that signs warning of haul trucks were installed on the FB road approaches to the intersection.
21 (There was a further particular (f), but it is irrelevant for present purposes.)
22 His Honour observed that the factual issues regarding these particulars were limited. There was no dispute that HWE had not done the things specified in particulars (a), (c), (d) and (e). The question at trial was whether the failure to do these things was a failure by HWE to meet its obligation to provide a safe work environment [11].
23 His Honour also observed that particular (b) required the determination of disputed facts. The defence requested the prosecution to state each and every respect in which visibility at the intersection was obstructed, disrupted or otherwise impaired by vegetation or by a bunding [12].
24 In response to this request, the prosecution alleged with respect to particular (b), that the bunding and vegetation at the intersection obstructed, disrupted and impaired visibility in the following respects:
(a) drivers of light vehiclesentering the intersectionfrom the south on the [FB] roadwere not provided with a clear viewof traffic coming from the [Iowa] road in sufficient time to avoid a collision or minimise the severity of a collision;
(b) drivers of light vehiclesentering the intersectionfrom the east on the [Iowa] roadwere not provided with a clear view of trafficon the [FB] road in sufficient time to avoid a collision or minimise the severity of a collision; and
(c) drivers of heavy vehiclesentering the intersectionfrom the east on the [Iowa] roadwere not provided with a clear view of light vehicle trafficon the [FB] road in sufficient time to avoid a collision or minimise the severity of a collision [12]. (emphasis added)
25 His Honour also said:
The defence also requested, in respect of par (c), that the prosecution identify 'in accordance with what regulation or otherwise it is asserted that stop signs ought to have been installed at the intersection'. The prosecution responded that the basis of the allegation was the duty in s 9 of the Act. While this is unhelpful as a positive averment, it shows that the prosecution was not relying on the Australian Standard, AS 1742.2 (Manual of uniform traffic control devices).
The standard, AS 1742.2, was, however, relevant in several respects. As particulars of pars (d) and (e), the prosecution referred to the use of warning signs in the mining industry, and that the Yandi Traffic Management Plan referred to the Australian Standard, AS 1742.2 which provides guidance on when such signs are required [14] - [15].
26 In relation to particular (e), the prosecution further particularised its case to allege that signs should have been installed on the FB road, in advance of the intersection, advising drivers to 'watch for trucks' or that 'trucks [were] entering' [165].
27 The 'hazard' alleged by the prosecution was, relevantly, in effect, the risk of injury or death as a result of collision (M2 [8]). As the primary judge correctly observed [8], 'hazard' under the Act is not defined in terms of 'risk' - see [90] below. The relevant 'hazard' or thing that may result in injury or harm was, relevantly, collisions - particularly between light vehicles and heavy vehicles, including haul trucks.
Stop signs - evidence
28 A significant part of the debate in the appeal before Allanson J, and in this appeal, was devoted to the issue of stop signs. It is convenient to outline material aspects of the evidence before the magistrate on the issue of stop signs. Before doing so, it is to be noted that in the prosecutor's written opening submissions before the magistrate, the prosecution indicated that its expert witnesses would provide opinion evidence to demonstrate that 'in order to improve the safety of the intersection … a stop sign should have been installed on the Iowa … road' (GB 198 - 199). No reference was made to any need for a stop sign on the FB road.
29 The respondent called Ms Selby, a transport engineer, to give evidence for the prosecution. Ms Selby had prepared a report dated 1 December 2008 (GB 797 - 844). In her report, Ms Selby stated that her report 'will determine if any road environment features contributed, or may have contributed to the fatal incident, or represent a hazard to road users within the study area' (GB 801).
30 After criticising the visibility of the intersection and the road alignment (the magistrate found both these complaints not established), Ms Selby said:
It is my opinion that, on the balance of probabilities, that [sic] the layout of the subject intervention could have been a contributory factor in the subject incident.
From Figure 31 (in Appendix B) requirements for a stop sign for a[n] intersection where the road speed is 60 km/h, a driver must be able to see clearly in both directions, either side of the intersection, for at least 40 metres when positioned 3 metres from the intersection …
The subject intersection is currently controlled by a 'Give Way' sign … The sight distance from the [Iowa] road looking north to [FB] road, however, was less than 40 metres. The intersection of the [Iowa] road and the [FB] Road therefore meets the warrant for a 'Stop' control. The requirements for the use of 'Stop' signage from AS 1742 are shown in Appendix B. Note that the visibility can be further obscured by vegetation which should be removed (GB 827). (emphasis added)
- (The magistrate observed that the opinion referred to in the first sentence above was not one 'strongly expressed' - M16.)
31 In a section headed 'Recommendations', Ms Selby said:
As a minimum, the intersection of [FB] Road and [Iowa] road should be controlled by 'Stop' signs. The 'Stop' signs should be installed on both the left-hand side of the [Iowa] road and doubled up on the median bunding. … An advance 'Stop' control warning sign, also to AS 1742, should also be considered on the approach to the intersection. The change in the control of the intersection to 'Stop' should be clearly communicated to all personnel … The Warrants for Stop signs are shown in Appendix B (GB 830).
32 Appendix B of Ms Selby's report had a box at the foot of the page entitled 'Requirements for installation of "Stop" signs - Source AS 1742.2'. It stated, amongst other things (GB 833):
2.5.3 Requirements for installation of Stop signs
The following describes conditions for determining whether a STOP sign is required on any approach to an intersection on which a driver is required to give way to an intersection stream. Where these conditions are met a Stop sign shall be used, regardless of whether a Give Way sign would otherwise have been installed.
34 She withdrew that evidence at the trial.
35 At the hearing on 26 November 2012, counsel for the prosecution tendered her report and asked a number of supplementary questions, including in relation to her opinion to the effect that there was a warrant for a stop sign. The following exchange occurred:
Now, do you still maintain that view? - - - From further information, no.
All right. What was that further information? - - - Further information was provided by Mike Annear.
Yes, and what …? - - - And I made an assessment of his measurements at the 40 metres on both sides. Therefore a give way sign was appropriate (26/11/12, ts 6).
36 Also in evidence-in-chief, the following exchange occurred:
Now, taking into account that you no longer consider that a stop sign was going to be required, then do these other matters that you recommend have any application? - - - Yes, you can still improve the sight visibility.
…
Going back to the stop sign which is the third last dot point … [c]an you tell us what you consider to be the purpose of a stop sign? - - - The purpose of a stop sign is to let drivers know that they're required to come to a complete stop - - -
Yes? - - - before moving through the intersection.
Yes, but why? Why should drivers stop? - - - Because the visibility is restricted and they need to look both ways clearly (26/11/12, ts 20).
37 In cross-examination the following exchange occurred:
But you've now, I think, agreed that contrary to what you said in your report the sight distances didn't warrant a stop sign? - - - That's correct.
How did you make the mistake? - - - I don't know.
Have you read Mr Johnston's report? - - - Yes, briefly (26/11/12, ts 29).
38 Also in cross-examination the following exchange occurred:
You said you read Mr Johnston's report? - - - Briefly, yes.
Did you agree with the conclusions in the report? - - - Yes (26/11/12, ts 35).
39 In re-examination, Ms Selby confirmed that she agreed with all of the conclusions in Mr Johnston's report (26/11/12, ts 35 - 37). Mr Johnston was an expert witness called by HWE.
40 Also in re-examination, the following exchange occurred:
Now, you were asked about the fact that you had changed your view about sight distances for - sorry, you changed your view about whether or not a stop sign warrant was made out and you were asked how you made that mistake originally and you said you didn't know. What was the basis of your original conclusion on a stop sign warrant? - - - Sorry, can you re-ask the question?
Yes. The question was put to you about your shift in opinion on whether a stop sign warrant was made out. Do you recall that? - - - Yes.
The question was asked of you when you said you had shifted your opinion, how did you make that mistake? So why was it that in the original report you said you put in something that was wrong and you said you didn't know - I don't know.
What was the basis of your conclusion originally? - - - On the measurements that were provided which at the time of writing I had understood to be.
[Where] did those measurements come from? - - - I thought they'd been provided to me (26/11/12, ts 37).
41 The prosecution also called Mr Nigel McDonald as a witness. He, together with Mr Paul Roberts, had prepared a report for HWE in November 2008 headed 'Road safety audit of the C5/Iowa ROM roads intersection at Yandi Mine' (GB 765 - 788). Mr Roberts was not called as a witness.
42 This report suggested that there should be a stop sign on a road (sometimes called a 'track') to the east of the FB road called the C5 Bore Access road (GB 783; 26/11/12, ts 51, 59). It also suggested that there be a 'stop sign ahead' sign installed on the approach from the 'C5 pit access road' (GB 783, par 5.7.1). Although this appears to be a reference to the FB road, the report did not, however, indicate any need for a stop sign to be installed at the intersection in question on either the FB road or the Iowa road. Also, in oral evidence Mr McDonald did not refer to the need for a stop sign on the FB road or the Iowa road. The burden of his evidence was to the effect that intersection warning signs were appropriate (26/11/12, ts 51, 53 - 54). He also agreed in cross-examination that he did not 'consider give-way signs or stop signs because that wasn't part of [his] brief' (26/11/12, ts 61). Although the report did not refer to the need for a stop sign at the relevant intersection, in examination-in-chief Mr McDonald was asked a general question as to the purpose of a stop sign. He said that as he would 'interpret it', it is to 'require a vehicle and its driver to stop, to give them an extra moment to assess the road environment, rather than continuing the move through where they don't have as much time' (26/11/12, ts 53). The prosecution tendered, through Mr McDonald, AS 1742.2 of 1994 (26/11/12, ts 45).
43 The prosecution also called Mr Puddey as a witness. He was a leading hand at the mine in 2008. His evidence was to the effect that at the give way sign at the intersection in question, a truck turning right from the Iowa road into the FB road would get to a 'rolling stop', where the vehicle is 'almost stationary' and 'just rolling above stationary' at about 3 - 4 km/h before increasing speed, if it were clear, up to 10 and perhaps 20 km/h (23/11/12, ts 15 - 16).
44 Some prosecution witnesses were asked by counsel for the prosecution whether, in effect, they would stop at a stop sign if there were one. They said that they would (Mr Redmond, Mr Lait and Mr Madden, 21/11/12, ts 28, 78 and 94).
45 As noted earlier, at trial Ms Selby agreed with the conclusions in Mr Johnston's report. Mr Johnston was a consulting engineer who was called as a witness by HWE. Mr Johnston had degrees in civil engineering, majoring in traffic engineering and transport engineering, a master of engineering science degree majoring in traffic and pavements engineering, and had nearly completed a masters of bio-medical engineering. He had investigated over 5,000 crashes, including over 200 on dirt roads (27/11/12, ts 3 - 5). He had prepared a report dated 2 November 2012 (GB 921 - 1007). In relation to the issue of a stop sign his report indicated, in effect, that in theory there were two primary reasons why a stop sign might be installed. One would be to meet the relevant traffic engineering code. As to that, he said that in 2008 the intersection did not meet the design criteria regarding installation of a stop sign (GB 973 par 9.22). Another reason for installing a stop sign might be if there were a history of incidents or complaints which had warranted further investigation, such that a stop sign may be a suitable countermeasure if there were 'operational characteristics of the site which the installation of a stop [sign] might resolve' (GB 971 - 972). Mr Johnston referred to an earlier incident at the site in 2006 which led to a safety audit which did not entail the decision to install a stop sign. He said that this was 'a reasonable response in the circumstances' (GB 973 par 9.23). After referring to sight distances at the intersection (GB 974 - 977), in relation to which he made an inspection and took his own measurements, he concluded that 'a stop sign was not required[,] a give way sign was the appropriate intersection treatment' (GB 977 par 9.29).
46 In examination-in-chief he amplified his evidence in the following terms:
[T]he Australian Standard talks about sight lines but it also talks about other factors. Is there anything else of which you are aware that would cause you to think that a stop sign was warranted other than sight lines? - - - Yeh, well, certainly with, sight line - the warrant sets a basic geometric parameter and usually if that geometric parameter is not met or is, is [sic], the sight distance is less than that geometric parameter, then the minimum criteria would apply and a stop sign should be installed. However, as the guide says, ideally if it's not met, the first step is to try and improve it so it is met before you put a stop sign in. A stop sign is not the first choice. It's often the last choice. You want to have good sight distances rather than constraints on distances and stop signs is the preferred method. So if it wasn't met the first step would be to improve the sight distance. However, with all intersections, with all considerations, you have to consider the history and other factors that warrant consideration of a stop sign and I, you know, I raised that in the report as one of the criteria one would use to consider whether a stop sign was necessary.
…
[T]here's a risk that where they have good sight lines but they're required to stop for no reason that they can, they start to, they start to not stop and then at the critical intersections where we do have actual sight constraints they tend to obey the same behaviour and roll through those as well, so that's one thing we are concerned with, with an overabundance of stop, stop control intersections (27/11/12, ts 15 - 16).
47 Mr Johnston was also cross-examined to the following effect:
You would agree, wouldn't you, that when - and I think you heard Mr McDonald yesterday saying 'the purpose of stop signs is so people stop and get a better look' or words to that effect? - - - The purpose of a stop sign should be that people have to stop to get a better look, not usually to give them a better look but because the geometry dictates we need them to stop at the intersection to look before they can proceed.
Yes, that's the same thing, isn't it? - - - No, one is -
The purpose - sorry, go ahead? - - - You're talking about whether it's driven by a desire to give them a better look or a desire because they need a better look. Usually because sight lines are constrained, eg, we've got buildings up to the corner - we can't modify the intersection. The only way they can get a proper look is to pull up at the intersection and look.
Yes. But you did indicate earlier that there may be different considerations at a mine site to a public road? - - - Correct, and there might be different considerations at an intersection where you have a repetition of errors.
Yes? - - - And then even on a public road you may then force people to stop.
Yes? - - - In a specific case to try and solve the problem (27/11/12, ts 48 - 49).
Whether the intersection was 'hidden' and the need for intersection warning signs
48 As the primary judge noted, the prosecution case relied, amongst other things, on AS 1742.2 in connection with the absence of any intersection warning signs.
49 AS 1742.2 provided relevantly:
2.9.2.1 General requirements
Warningsigns in this series may be provided in advance at an intersection where there is insufficient sight distance along the main road to a vehicle about to enter from the side road. Where the sight distance is less than the stopping sight distance given in table 2.6 … a warning sign may be required.
They may also be required where the presence or importance of an intersection, or an unusual intersection layout is not readily discernible by an approaching driver.
To maintain their effectiveness, intersection warning signs shall be limited to intersections of greater than general hazard. They shall not be used where -
(a) … geometric cues give sufficient information to approaching drivers about the layout, importance or existence of the intersection;
(b) the intersection presents no greater hazard than other intersections in the vicinity; or
(c) there is a need to warn of a curve, but no need to warn of an intersection on the curve (GB 571).
51 The prosecution also alleged in closing that the intersection was 'hidden' from vehicles approaching the intersection from the FB road, and that accordingly, advance warning signs, warning of the presence of the intersection, were required (prosecutor's closing submissions par 74; BB 220).
52 The word 'hidden' to describe the intersection was used by Ms Selby in her report. She referred to a photograph she took looking north along the FB road towards the intersection, 125 metres back from the intersection. She said that although it was possible to see the 'point of conflict' (ie, that part of the intersection where the accident had occurred), there was 'little indication' that there was an intersection there. She said that the median bunding, and bunding on the north side of the Iowa road at the intersection with FB road, were set further back than the bunding on the south side of the Iowa road. She said that the Iowa road 'intersection is "hidden" by the bunding and the vegetation on top of the bunding on the west side of [FB] road' (GB 816). Ms Selby also stated in her report that 'views from all approaches to the intersection [were] limited' (GB 812).
53 As the primary judge observed, whilst Ms Selby repeated in cross-examination that visibility on the FB road was restricted and that you could not see the intersection, she also:
• conceded that she had done no measurements to work out how far back it became difficult to see the intersection;
• agreed that a driver on the FB road would see a haul truck approaching the intersection because of the size of the haul truck;
• agreed that the vegetation might not have been the problem she believed it was when she wrote her report;
• had never driven towards the intersection herself;
• accepted that the driver of a light vehicle would have a higher vantage point than the eye height on which she based her conclusion [144] - [145].
54 Also, as noted earlier, at trial Ms Selby agreed with Mr Johnston's conclusions. Mr Johnston had also stated in his report that the light vehicle driver proceeding along the FB road 'had the opportunity to view the haul truck at numerous points as it approached the intersection' (GB 982).
55 Mr McDonald's report stated that the approach to the intersection was 'significantly curved' and that a driver 'arrives quite suddenly at the intersection after rounding the curve'. It further stated that 'there needs to be adequate warning of the approach of an intersection and in its current configuration there is not enough warning of the approach to this intersection' (GB 782).
56 In cross-examination, Mr McDonald's evidence included the following:
Now, your report … did not entail any use of measurements. So what you were doing, as I understand it, is you were putting yourself in the mind's eye of the driver and just forming a view about visibility issues, those sorts of thing? - - - Correct. You may be able to put it in the context of almost a devil's advocate for road designers.
Well, without wishing to be disrespectful to your profession, does that require any expertise? - - - It doesn't necessarily …
It doesn't necessarily? - I guess the answer is it doesn't … (26/11/12, ts 58).
57 In relation to the photographs in his report referring to the issue of visibility, Mr McDonald's evidence included:
So when you took this photograph you weren't trying to place yourself in the eye of, for example, a haul truck driver on the one hand or a four-wheel vehicle driver on the other, were you? You were just taking a photograph? - - - Yes, certainly not. It's purely a scene view rather than a driver's view.
When you talk about issues of visibility to the left and the right of this particular intersection we're interest in, or indeed any intersection, you're not actually asking yourself the question about visibility from the point of view of the four-wheel drive vehicle are you at his eye level height or the haul truck driver from his eye level height? You were just simply making an observation as Nigel McDonald? - - - Yes, that's correct, and in fact the intersection was closed with the windrows as discussed so we weren't actually even able to drive through the legs at the intersection, we were just walking around and making observations (26/11/12, ts 56 - 60).
58 Mr McDonald also said in cross-examination with respect to intersection warning signs:
[I]f [employees] … were familiar with the road conditions, I would imagine it's not necessary and indeed I believe that a driver driving any route, having familiarity with it would no doubt not observe warning signs because they're more familiar with the road environment than looking for actual warning signs (26/11/12, ts 63).
59 The prosecution also called a number of persons who had been employed at the mine at the time of the accident. There was evidence from a number of these persons on the question of visibility. There was evidence to the effect that drivers of light vehicles had satisfactory visibility at or on the approach to the intersection, including visibility from the FB road (Vickers 20/11/12, ts 63; Lazic 20/11/12, ts 84; Best 22/11/12, ts 35; Holloway 22/11/12, ts 59; Coleman 22/11/12, ts 83; Hunt 22/11/12, ts 100).
60 Similarly, there was evidence from witnesses called by the prosecution which included evidence to the effect that visibility for drivers of haul trucks approaching the intersection along the Iowa road was not a problem (Redmond 21/11/12, ts 41; Watt 21/11/12, ts 61; Lait 21/11/12, ts 81; Madden 21/11/12, ts 85, 97 (particularly in relation to light vehicles which have a flag and a beacon); Best 26/11/12, ts 36; Hunt 22/11/12, ts 100; and Puddey 23/11/12, ts 19).
61 On the other hand, Mr Shaw said that visibility, at least in one section of the FB road on the approach to the intersection, was poor because of the height of the windrow and vegetation and the angle or curvature of the road (21/11/12, ts 106 - 107, 110 - 111). Mr Watt also said that visibility was not as good from the light vehicle driver's perspective because of the height of the windrow (21/11/12, ts 61).
Signs warning of haul trucks
62 As the primary judge noted, the prosecution case with respect to signs warning of haul trucks also relied in part on AS 1742.2.
63 In closing (BB 221), the prosecution also referred to HWE's 'All Incident Report Form' concerning an incident late at night on 10 August 2006 where a driver of a haul truck, approaching the intersection from the Iowa road, did not see a light vehicle on the FB road until he was 'almost at the intersection' (GB 502). The driver of the light vehicle was almost 50 m away and said that he had plenty of space to stop (GB 506). 'Immediate contributing factors' referred to were 'previous hazard reports' and 'lights from other [dump truck] shining [o]n face blinding operator' (GB 507). At trial Mr Dagg, the driver of the dump truck approaching the intersection from the Iowa road, also referred to visibility difficulties arising from the windrows and vegetation as they existed in 2006 (22/11/12, ts 42 - 43).
64 The report indicates that Mr Holloway, under the heading 'HWE responsible superintendent comments' stated 'more care to be taken when approaching intersections. Signage saying trucks crossing maybe a help' (GB 508). The project manager, Ms Coleman, commented 'truck management audit for intersections is to be carried out within the week' (GB 508), and recommended that as a corrective action. Ms Coleman also signed a page of the report (GB 507) in which there was also a proposed corrective action to the effect that pre-shift meetings should discuss introducing information signage notifying haul road usage (GB 507). Ms Coleman thought that the proposed audit and proposed discussion at pre-shift meetings were 'good corrective actions' (22/11/12, ts 75).
65 Mr Hunt was called as a witness for the prosecution. He gave evidence that he had done a risk assessment of the intersections in 2005, as a result of which the heights of the windrows were lowered at the Iowa intersection (22/11/12, ts 85 - 88). His job at the time was to improve visibility, and not to consider questions of signage (22/11/12, ts 91). He also said that in 2006 the intersection was a four-way intersection and not a T-intersection (22/11/12, ts 99).
66 Mr Best, the leading hand to whom Mr Dagg reported the incident in 2006, did not regard it as technically a 'near miss' because the vehicles were over 50 m apart. He thought that windrows may have been lowered after the 'near miss' (22/11/12, ts 11 - 12, 33 - 34).
67 In cross-examination, Mr Johnston was asked whether he agreed that a haul truck warning sign would increase the alertness and reduce reaction time of drivers. He said:
I doubt on a mine. I doubt it in this sort of environment that it would make any difference, except at an interface. So, say, when you are going from the public area where you wouldn't experience them, into the interface of the mine itself, a warning there that you are now entering that different area may be of use. But at specific locations within the haul network, I doubt it would be of any benefit.
It would depend on the individual wouldn't it? - - - Look if, an individual had no expectation of seeing a haul truck and suddenly there was a sign there that might be a haul truck and he went, 'Oh, my God. You know there might be a haul truck in this mine'. Maybe, but I'm not sure that there's a lot of merit in that argument (27/11/12, ts 63 - 64).
68 Similarly, Mr Puddey said in examination-in-chief:
Haul truck warning signs or haul road usage signs, were they ever used? - - - No, it's a pit.
Yes, what do you mean by that? - - - What I mean is, when you - before you can enter into any pit area from where access can be made by light vehicles, from the offices say, there's your line pretty much. There's a big sign that says 'Active machinery mine-site. Pit permit required'.
Right? - - - And then any pit permit holders that go in there understand that every intersection is a haul road, every road is a haul road, every single road that you will drive on from thereon in until you leave that signed area is a trucks in the area road.
Yes. Do you recall whether or not there was a sign like that, 'Pit permit only' type sign between the workshop and the [FB] road? - - - Yes.
Was there one? - - - Yes.
Do you remember where it was? - - - Yep, there was one as you leave the workshop, I'm fairly sure, as you come out at the back of central 1 pit and there was also another one right alongside by go-line which is the single road access, the only access in there from the offices.
Right? - - - And there was a big one there.
Do you remember when that was put in? - - - There was always one there (23/11/12, ts 14).
Summary of the magistrate's reasons
69 The magistrate identified the charge, including the reference to s 9 and s 9A of the Act, the alleged hazard and the particulars of the alleged failure (M2 - M3).
70 The magistrate said, with respect to the onus of proof:
The prosecution has to prove each and every element of the offence beyond a reasonable doubt before they are entitled to a conviction. The accused does not have to prove anything and the onus on the prosecution never shifts to the company. Any evidence given by or on behalf of the company is considered a part of the fabric of the evidence, but there is no shifting of the onus to it at any stage.
I appreciate that in this case I have to draw inferences and I know I can only draw an inference adverse to the accused if it is the only one reasonably open on the evidence (M3).
71 The magistrate then identified the definition of 'practicable' in s 4 of the Act and referred to a number of the relevant authorities in this area, including recent authority of this court (M 3 - M4).
72 Under the heading 'Evidence and facts - General Comment' the magistrate said, consistently with s 31 of the Magistrates Court Act:
In my reasons I am not going to refer to all the evidence but only those parts that I think are necessary for the purpose of giving these reasons. Suffice to say I harkened carefully to the evidence and have considered it all in arriving at these reasons.
When I make findings of fact I have found the primary facts proven beyond a reasonable doubt and where I have drawn inferences against the accused I have drawn them as the irresistible ones, or in other words the only ones reasonably open when they are drawn against the accused (M5).
73 Before dealing with each of the particulars of the charge, in a section entitled 'Did the intersection and its layout contribute to the accident?' the magistrate said:
The prosecution alleges in the prosecution notice, particulars of failure to provide a working environment in which employees are not exposed to hazards.
The prosecution alleges in particular in failing to take the steps enumerated in paragraphs 5(a) to 5(e) of the Particulars, the accused failed in its statutory duty under section 9 of the [Act].
The particulars are directed to the intersection in question and it is that intersection that this Prosecution is based upon (M13 - 14).
74 The magistrate then went on to address and make findings about each of the particulars relied upon by the prosecution in support of the charge. His findings in these respects are set out below.
Angle of the road (prosecution particular (a))
(i) HWE had the ability and responsibility to amend the layout of the roads and intersections for safety purposes (M14);
(ii) the underlying safety issue was not the angle, but the 'sight distance'. Not all roads are straight and nor can all be at 90 degrees to each other. The issue was whether by not amending the layout of the intersection, HWE had failed to minimise exposure to hazards (M14 - M15);
(iii) the magistrate, in effect, preferred Mr Johnston's evidence over Ms Selby's evidence and, in any event, Ms Selby in effect ultimately agreed with Mr Johnston that the angle of the intersection did not adversely affect the vision of the light vehicle (M15 - M16); and
(iv) the angle of the intersection did not expose the deceased to the hazard of a collision and particular 5(a) was not made out (M16).
Visibility obstructed by vegetation/bundings (prosecution particular (b))
(i) the key was visibility and poor or inadequate visibility obviously increases the hazardous risk of collision and HWE had the responsibility of maintaining visibility at the intersection (M16);
(ii) the 'near miss in 2006' was reported as a safety issue, and was acted upon by HWE by removing the crossroads and making the intersection a T-intersection; also the height of bunding at the intersection had been lowered to assist visibility following the 'near miss' incident (M16, M19);
(iii) there was no cogent evidence that the bundings were too high so as to interfere with visibility; and the bundings did not prevent the drivers of either haul trucks or light vehicles from seeing each other (M17);
(iv) certain photographic evidence (exhibit 1.6.8) indicated that the intersection was a very large one and that a light vehicle driver on the FB road would have a good view of the intersection for some distance back from it (M17);
(v) he accepted the evidence that all types of vehicles on the FB road could be seen from the Iowa road (M18); and
(vi) it was not demonstrated that vehicles on the FB road, which kept a proper lookout, could not see vehicles on the Iowa road and, to the contrary, he accepted evidence to the effect that a light vehicle driver at numerous points would have the opportunity to view a haul truck travelling on the Iowa road as it approached the Iowa intersection (M19).
No stop signs (prosecution particular (c))
(i) the Road Traffic Code is identical in terms and effect for both stop signs and give way signs, with the only difference being that a stop sign creates a separate obligation to stop (M19);
(ii) the requirement to give way is identical in terms and effect for both stop signs and give way signs (M19);
(iii) neither expert called in the trial, Ms Selby or Mr Johnston, expressed the view that a stop sign was warranted in the sense of being required by competent design criteria and road building standards (M20);
(iv) there was no previous history which would indicate the need for a stop sign;
(v) he accepted Mr Johnston's conclusion, with which Ms Selby ultimately agreed, that a give way sign was adequate at this location (M20); and
(vi) the prosecution had not established the failure alleged in particular (c).
No advance intersection warning signs on the FB road (prosecution particular (d))
(i) persons with 'pit permits' would be familiar with the intersection;
(ii) the Iowa road intersection was only one of two intersections on the FB road;
(iii) HWE's induction program would have led anyone, even those employees without pit permits, to be aware of the intersection;
(iv) the intersection was not 'hidden';
(v) Mr Johnston, and other witnesses, expressed the view that under closed mine site conditions, such signs would have no use; and
(vi) the prosecution had failed to establish particular (d) (M20 - M21).
No signs on the FB road warning of haul trucks (prosecution particular (e))
(i) the Iowa road had not been used for about a year except for two days prior to the accident;
(ii) the deceased would have been aware that haul trucks were operating there because he was travelling behind one of them at the time; and
(iii) haul trucks were in constant motion in the pit area and their size and movement would be obvious to any observer, and warnings of their presence would be 'superfluous', as haul trucks 'were part of the mine's raison d'etre' (M21 - M22).
Conclusion
75 The magistrate concluded:
[T]he issue for determination in this prosecution is whether the prosecution has succeeded beyond a reasonable doubt to satisfy the Court that the Accused has failed to meet its obligation under the [Act] as particularised.
In my view they have not (M23).
76 It may also be noted here that there was unchallenged evidence, not expressly mentioned by the magistrate, to the effect that after the accident HWE had installed stop signs at all intersections, and that intersection warning signs had been installed at certain intersections where it was considered appropriate (BB 101). As noted later in these reasons, even without this evidence, there could be no reasonable doubt (as both counsel, in effect, accepted in this appeal, 17/09/14, ts 7, 48, 57 - 58) that such signs were available and could have been installed at no material cost.
The primary judge's findings
77 As noted earlier, his Honour found, in effect, that grounds 1, 2, 8, 11 - 12, 14, 16 and 17 had been established, effectively on the basis that they revealed that the magistrate had misdirected himself as to, and/or had misapplied, s 9 of the Act [76], [84], [113] - [126], [137] - [157], [161] - [175]. His Honour considered that the error of law was revealed in the magistrate's consideration of particular (c) (no stop signs); particular (d) (no advance warning signs on the FB road of the intersection); and particular (e) (no signs on the FB road warning of haul trucks).
78 The substance of these findings is set out in [82] - [86] below.
79 The judge also found that ground 13 had been established. Ground 13 alleged that the magistrate erred in finding as a fact that the intersection was not hidden [150] - [151]. The judge's findings in this regard are referred to at [102] below.
80 Further, the primary judge also found, relevantly, that:
(a) the magistrate did not err in finding that there was no previous history at the intersection which would require a stop sign to be installed [133] - [136];
(b) the magistrate did not err in finding that the intersection did not meet the design criteria for a stop sign under AS 1742.2 [128] - [132];
(c) the magistrate did not err in finding that the bunding and vegetation did not obstruct, disrupt or otherwise impair visibility at the intersection [97] - [108]; and
(d) the magistrate did not err in fact in finding that HWE had acted on a near miss accident at the intersection in 2006 and that even if the magistrate erred in that regard, it was not of any consequence to the result [87] - [96].
81 The judge did not deal with the respondent's allegation to the effect that the magistrate erred in finding that the intersection warnings had no utility at the mine because there was a pit permit system and there were only two intersections on FB road [158] - [159].
Signs generally
82 In relation generally to stop signs, advance warning signs and haulage truck warning signs, the judge found, in effect, that the magistrate had determined the question as a 'factual issue', and had not considered whether the step of installing a sign was a practicable means of mitigating the risk of collision and serious injury at the intersection [78], [80]. The judge said that in proceeding this way, the magistrate had raised a question not posed by s 9(1) of the Act in the section of the magistrate's reasons headed 'Did the intersection and its layout contribute to the accident?' [79].
Stop sign
83 Specifically with reference to the stop sign allegation, the judge observed, in effect, that there was evidence capable of supporting the prosecution case, including Mr McDonald's evidence [119] - [123]. His Honour said that the magistrate could have, but failed to, 'weigh up the advantages and disadvantages of requiring vehicles on the [Iowa road] to come to a complete stop before entering the intersection' [123]. His Honour considered that the magistrate confined his consideration to 'limited and … insufficient matters' [125].
Advance warning signs of intersection
84 Specifically with respect to signs warning in advance of the existence of the intersection, the judge observed, in effect, that the evidence that the intersection was 'hidden' was relevant to this issue; that there was undisputed evidence as to the curvature in the road and the angle of the intersection; that the intersection had not been in use for a year; and that there was other evidence confirming that the intersection was not in common use at around the time of the accident [152]. Further, his Honour said that the judge had not determined the degree of risk of injury occurring at the intersection [153].
85 His Honour also said that the magistrate had failed to consider whether 'the risk of injury … would be lessened by signs warning of the intersection' [153]. His Honour also said that the magistrate should have, but failed, to consider the evidence that warning signs were installed after the accident [154].
Signs warning of haulage trucks
86 With respect to signs warning of haul trucks, his Honour again referred to the evidence from which he concluded that the magistrate had erred in finding that the intersection was not hidden [169]. His Honour also referred to evidence to the effect that the frequency of usage of roads and intersections in the pit could fluctuate from time to time, and that the relevant intersection had not been in use for some time previously [167] - [171]. His Honour said that the magistrate could not properly find that such signs would be totally superfluous without considering that evidence [172]. His Honour concluded that by finding that such signs were totally superfluous, the magistrate 'wrongly closed further consideration on particular (e)' [174].
The statutory provisions and principles
87 Section 9 of the Act provides:
(1) An employer must, so far as is practicable, provide and maintain at a mine a working environment in which that employer’s employees are not exposed to hazards and, in particular, but without limiting the generality of that general obligation, an employer must -
(a) provide and maintain workplaces, plant, and systems of work of a kind that, so far as is practicable, the employer’s employees are not exposed to hazards; and
(b) provide such information, instructions and training to and supervision of employees as is necessary to enable them to perform their work in such a manner that they are not exposed to hazards; and
(c) consult and co-operate with safety and health representatives, if any, and other employees at the mine where that employer’s employees work, regarding occupational safety and health at the mine; and
(d) where it is not practicable to avoid the presence of hazards at the mine, provide employees with, or otherwise provide for the employees to have, such adequate personal protective clothing and equipment as is practicable to protect them against those hazards, without any cost to the employees; and
(e) make arrangements for ensuring, so far as is practicable, that -
(i) the use, cleaning, maintenance, transportation, and disposal of plant; and
(ii) the use, handling, processing, storage, transportation, and disposal of substances,
at the mine is carried out in such a manner that that employer’s employees are not exposed to hazards.
…
(5) The duties imposed under subsection (1) on an employer who is the principal employer at a mine are not taken to be carried out only by the appointment of a manager for the mine.
(6) Notwithstanding subsection (1), any duty imposed under that subsection on an employer who is not the principal employer at the mine applies only in relation to matters over which the employer who is not the principal employer has control, or but for an agreement between the 2 employers, would have had control.
88 As the primary judge noted, the penalties for breaches of s 9(1) of the Act are found in s 9A. His Honour said [4]:
The penalties for breaches of s 9(1) are found in s 9A. Higher penalties are prescribed where an offence occurs in circumstances of gross negligence, and where, by the contravention, the employer causes death or serious harm. Relevantly, by s 9A(2) and (3):
'(2) If -
(a) an employer -
(i) contravenes section 9(1); and
(ii) by the contravention causes the death of, or serious harm to, an employee;
and
(b) …,
the employer commits an offence and is liable to a level 3 penalty.
(3) If -
(a) an employer contravenes section 9(1); and
(b) neither subsection (1) nor subsection (2) applies,
the employer commits an offence and is liable to a level 2 penalty.'
practicable means reasonably practicable having regard, where the context permits, to -
(a) the severity of any potential injury or harm to health that may be involved and the degree of risk of such injury or harm occurring; and
(b) the state of knowledge about -
(i) the injury or harm to health referred to in paragraph (a); and
(ii) the risk of that injury or harm to health occurring; and
(iii) means of removing or mitigating the potential injury or harm to health;
and
(c) the availability, suitability, and cost of the means referred to in paragraph (b)(iii).
90 Section 4 of the Act defines 'hazard' as, in effect:
[A]nything that may result in injury to the person or harm to the health of the person.
91 The statutory scheme under s 9(1) of the Act is essentially the same as the statutory scheme under s 19(1) of the Occupational Safety and Health Act 1984 (WA). A number of the relevant principles in relation to s 19(1) of the Occupational Safety and Health Act were outlined in Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 [30] - [39]. Those principles have equal application to the operation of s 9(1) of the Act and they need not be repeated here. The following observations by Dawson, Toohey and Gaudron JJ in Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249, 260 - 261 may also be noted:
The questions of safety and practicability, in many cases, raise issues of common sense rather than special knowledge. See Neill v NSW Fresh Food and Ice Pty. Ltd, per Taylor and Owen JJ. See also Australian Oil Refining Pty Ltd v Bourne. In some cases the mere identification of the cause of a perceptible risk may, as a matter of common sense, also constitute identification of a means of removing that risk, thereby giving rise to a strong inference that an employer failed to provide 'so far as is practicable' a safe workplace. In other cases the same inference will arise from the identification of some method which would remove or mitigate a perceptible risk or hazard. And, in such cases, that inference might well be further strengthened by the failure of an employer to call evidence as to matters, such as cost and suitability, peculiarly within his knowledge. See Jones v Dunkel. (citations omitted)
92 The following matters under the common law, by analogy, are also relevant to the operation of s 9(1) of the Act.
93 The employer must also take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work: Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 [12].
94 The mere fact that changes are made in the work environment after the accident does not support a conclusion of breach of duty; the significance of changes is only to show what could have been done, not what should have been done; they are not an admission of liability: Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 [94], [96]; Caledonian Collieries Ltd v Speirs [1957] HCA 14; (1957) 97 CLR 202, 224.
95 Generally speaking, the employer's duty will include warning employees of unusual or unexpected risks. However, it is not the case that an employer is never under a duty to warn employees of risks which are usual or expected. For example, if it is apparent that employees are making a practice of ignoring an obvious danger, a warning may be necessary, although no detailed rules can be laid down: McLean's Roylen Cruises Pty Ltd v McEwan [1954] HCA 43; (1954) 54 ALR 3, 7.
HWE's grounds of appeal to this court
96 The appellant's grounds of appeal were lengthy. They were supplemented by a document headed 'References in appeal judge's decision relevant to ground 4'. It is unnecessary to set them out verbatim.
97 Grounds 1 - 3 alleged, in effect, that the primary judge erred in finding that on the proper construction of the magistrates reasons, the magistrate had misdirected himself as to, and/or had misapplied, s 9 of the Act insofar as the magistrate's reasons addressed:
(a) the use of stop signs;
(b) the use of advance intersection warning signs; and
(c) the use of haul truck warning signs.
98 Subsumed within ground 2 was an allegation to the effect that the judge erred in finding that the magistrate had erred in fact in finding that the intersection was not hidden. This issue was also relevant to ground 5, referred to below. In this regard, HWE also contended, in effect, that the judge rejected the magistrate's finding on the basis that the magistrate's reasons were insufficient on that question. HWE contends that this was an error because the sufficiency of the magistrate's reasons was never advanced as a ground of appeal before his Honour.
99 Ground 4 alleges, in effect, that the judge erred in law by failing to make a finding as to whether or not the requirements of s 31 of the Magistrates Court Act were met.
100 Ground 5 alleges, in effect, that insofar as his Honour held that the magistrate's reasons failed to give adequate consideration to various matters, his Honour erred in law in that the sufficiency of the magistrate's reasons was not the subject of appeal to his Honour.
101 Ground 6 alleges, in effect, that his Honour erred in law in ordering that the matter be remitted to the Magistrates Court of Western Australia for retrial.
Disposition
Error of fact - intersection 'hidden' (ground 2)
102 It is convenient to deal with this factual matter first. The judge concluded that the magistrate had erred in fact in finding that the intersection was not hidden. He expressed his conclusion in the following terms:
The primary reason the magistrate gave for finding the prosecution had not proved its case on particular (d) was the utility of warning signs in a closed road system. The finding challenged in ground 13 [intersection not hidden] was part of the magistrate's reasoning to that conclusion. If his Honour meant that the intersection was clearly visible as you approached it, the finding was a rejection of Ms Selby’s evidence, but the reasons do not disclose why he rejected it. The reasons do not say anything about the evidence of Mr Shaw and Mr McDonald that there is little warning of the intersection. If the magistrate has accepted other evidence that the intersection could be seen as you approached it, he has not said what that evidence is or why he has accepted it [150].
103 Those observations would appear to be directed to an insufficiency of reasons. Yet insufficiency of reasons was not a complaint made by the respondent in the appeal to his Honour.
104 Insofar as his Honour considered that the magistrate's finding that the intersection was not hidden was not open to him on the evidence, the following observations may be made.
105 First, the judge, whilst referring to the evidence of Ms Selby, Mr McDonald, Mr Shaw and Mr Watt [148], omitted reference to the evidence of witnesses to the effect that visibility at and on the approach to the intersection, including from the FB road, was not a problem (see [60] above). Secondly, whilst his Honour had referred to Mr Johnston's evidence [148], his Honour considered that it did not address the expert evidence of Ms Selby and Mr McDonald to the effect that it was the intersection itself which was not visible, or lacked visibility (reasons [145] - [148]). However, with respect, it was open to the magistrate to find that the intersection was not, in any relevant sense, 'hidden', in light of the evidence to which his Honour omitted reference, and the evidence of Mr Johnston. Mr Johnston's evidence was to the effect that the light vehicle driver proceeding along the FB road 'had the opportunity to view the haul truck at numerous points as it approached the intersection' (GB 982) (emphasis added). Thirdly, in assessing the credibility and reliability of Ms Selby's evidence, the magistrate would have been entitled to take into account the way she changed her evidence at trial (concerning stop signs), and the concessions and other matters to which his Honour referred, which are summarised at [53] above. Fourthly, as the cross-examination of Mr McDonald referred to in [56] above indicated, Mr McDonald was not using any relevant 'expertise' in giving evidence on this topic. It would have been open to the magistrate to accept that his lay opinion carried no more, or perhaps even less, weight than the experience of the drivers who gave evidence that the intersection was visible, including from the FB road. Fifthly, as noted earlier, the judge accepted that the magistrate did not err in finding that the bunding and vegetation did not disrupt or otherwise impair visibility at the intersection [97] - [108]. Mr Shaw and Mr Watt (see [61] above) had based their opinion as to visibility at least in part on the state of the windrows and/or vegetation.
106 For these reasons, in my respectful view, the learned primary judge erred in finding that the magistrate had erred in fact in finding that the intersection was not 'hidden'.
Preliminary observations concerning signage
107 For the purposes of s 9(1) of the Act, the 'working environment' in this case was the system of roads on which employees drove within the mine site, and in particular the Iowa intersection. HWE, so far as was reasonably practicable, was obliged to provide and maintain the Iowa intersection so as not to expose employees to collisions at the intersection.
108 HWE, relevantly for present purposes, was obliged to adopt measures which, so far as reasonably practicable, would eliminate or (if that were not possible) minimise the incidence or severity of collisions occurring at the intersection. In this regard, it is to be accepted that collisions may occur on safe roads, or in safe driving environments, as a result of driver error, although, as noted earlier, in this context account is to be taken of the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in the case of repetitive work (Czatyrko [12]).
109 The relevant hazard was, in substance, a collision occurring at the intersection between a haul truck and a light vehicle (cf [80]). There could be no doubt that if there were a collision between a haul truck and a light vehicle the 'severity of any potential injury or harm', at least to the driver or occupants of the light vehicle, would be substantial and included the possibility of death (see par (a) of the definition of 'practicable' in s 4 of the Act). Also, there could be no doubt that in terms of the 'degree of risk of such injury or harm', there was a high risk of such severe injury resulting to the driver or occupant of the light vehicle from any collision with a haul truck. (Again, see par (a) of the definition of 'practicable' in s 4 of the Act.)
110 In relation to signage, there was no dispute that the signs alleged by the prosecution had not been installed. Moreover, there could be no doubt that signs were available and could be installed at the intersection at no material cost. To that extent, there could be no doubt that signs were in that sense 'practicable' for the purposes of s 4 of the Act (par (c) of the definition of 'practicable'). As to whether they were 'suitable' (also par (c) of the definition of 'practicable'), on the evidence that may have raised for consideration the question of whether further or other signs could cause 'signage fatigue' or some other similar phenomenon.
111 There is nothing in the magistrate's reasons to indicate that he misunderstood the operation and application of the Act in the basic respects referred to in the preceding paragraphs.
112 However, a fundamental question for the magistrate was whether the prosecution had proved, beyond reasonable doubt, that the particular signage alleged by the prosecution would have eliminated, or at least minimised, the incidence or severity of collisions occurring at the intersection.
113 This question required a consideration of all the relevant circumstances, including:
• the visibility of the intersection having regard, amongst other things, to the fact that haul trucks had particular features, including a 'blind spot' presented by the A-pillar of the vehicle;
• the nature of the intersection (a T-intersection governed by a give way sign);
• the history of any accidents or incidents at the intersection; and
• the physical characteristics of the intersection such as the presence or absence of windrows and vegetation.
114 If, on a proper construction of the magistrate's reasons, it can be seen that the magistrate excluded from his consideration evidence relevant to the determination of this fundamental question, or failed to evaluate the evidence led, then it might be possible to infer that he misapplied s 9(1) or misdirected himself as to the relevant statutory task. However, care would need to be taken in drawing that inference, as a general allegation that the court failed properly to engage with the evidence might amount, impermissibly, to no more than an allegation that the court failed to address the evidence in a way favourable to the losing party.
115 Before concluding that the magistrate had failed in that regard, the magistrate's reasons would need to be construed as a whole, bearing in mind the way in which the prosecution ran its case and the evidence led. Regard must also be had to the particular statutory context in which the magistrate's reasons are to be assessed. Section 31 of the Magistrates Court Act provides:
(1) The Court’s reasons for a judgment in a case -
(a) need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so;
(b) need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so;
(c) need not canvass all the evidence given in the case; and
(d) need not canvass all the factual and legal arguments or issues arising in the case.
(2) The fact that a judgment is given orally or in accordance with subsection (1) is not of itself a ground for reversing or modifying it on an appeal.
116 In Manonai v Burns [2011] WASCA 165, Hall J (Pullin & Murphy JJA agreeing) said [56], [61]:
The realities of pressure of work and limited time in the magistrate's court must be acknowledged. Section 31 of the Magistrates Court Act obviates any need for a magistrate to canvass all of the evidence given in the case or to canvass all the factual and legal arguments or issues arising in the case. These dispensations appear to recognise the summary nature of proceedings in the Magistrates Court. Reasons can be adequate and comply with s 31 of the Magistrates Court Act without having to be unduly long. It is the substantive content of the reasons rather than their length which is important.
…
Whether the content of reasons is adequate will depend on the circumstances of the case and the matters that arose for the judge's consideration. The court will look at the reasons as a whole and if necessary in the context of the evidence to determine if they give the sense of what was intended in a way that achieves the required function and purpose: SNF (Australia) Pty Ltd v Jones [2008] WASCA 121 [32].
117 At the outset, it may be observed that the judge considered that insofar as the magistrate raised the question as to whether the intersection and its layout contributed to the accident, the magistrate was addressing a question not posed by s 9(1) of the Act [79]. With respect, that would seem to be an unduly narrow interpretation of the magistrate's reasons, and would appear to disregard the nature of the prosecution case. The prosecution led evidence from Ms Selby that 'the layout of the subject intersection could have been a contributory factor in the subject incident' (GB 827). The language used by the magistrate in this section of his reasons appears to reflect the way the prosecution advanced its case.
118 The relevant part of the magistrate's reasons is referred to in [73] above. The heading to this section in the magistrate's reasons, the subject of the primary judge's criticism, is to be understood in its context by reference to the observations which preceded it and followed it. Earlier the magistrate had referred to the charge which included reference to s 9(1) of the Act and identified the 'hazard' (M2). The magistrate was no doubt correct to say, in effect, that the prosecution particulars were directed to the intersection in question, and that it was the features and layout of the intersection upon which the prosecution based its case. Although the words 'contribute to the accident' might arguably be thought to be directed to causation in s 9A(2)(a)(ii) of the Act, and to that extent it might be argued that the magistrate confused contravention with causation, that construction is not fairly open. First, the magistrate, under the heading in question, in terms referred to s 9, and not s 9A. Secondly, had he intended it to be a reference to causation, there is no reason why he would not have used the language of s 9A 'cause the death of'. Thirdly, causation only occurs once contravention has been established, and at this point in the magistrate's reasons, he was embarking on a consideration of the issue of contravention in light of the prosecution's particulars. Fourthly, in context, the magistrate's reference to whether the intersection 'contribute[d]' to the accident is a reference to whether the absence at the intersection of the measures alleged by the prosecution contributed to the relevant hazard, being (it was alleged) 'the risk of injury or death as a result of collision' (M2). As noted above, that is consistent with the way the prosecution advanced its case.
119 Accordingly, in my respectful view, it was not open to the judge to conclude that the magistrate had misapplied or misdirected himself as to s 9(1) of the Act insofar as he considered that the magistrate had raised for consideration an extraneous matter by the use of the heading 'Did the intersection and its layout contribute to the accident?'.
Stop signs (ground 1)
120 The prosecution tendered two expert reports, one by Ms Selby and the other by Mr McDonald. Ms Selby's report stated, in effect, that stop signs were required on the Iowa road at the intersection, but she withdrew that evidence at trial. Mr McDonald in his report did not contend that a stop sign was required for safety purposes at the intersection. Mr Johnston's expert evidence was to the effect that a give way sign was suitable for safety purposes at the intersection.
121 As noted earlier at [80], the judge found that the magistrate did not err:
(a) in finding that there was no previous history at the intersection which would require a stop sign to be installed [133] - [136];
(b) in finding that the intersection did not meet the design criteria for a stop sign under AS 1742.2 [128] - [132];
(c) in finding that the bunding and vegetation did not obstruct, disrupt or otherwise impair visibility at the intersection [97] - [108]; and
(d) in finding that HWE had acted on a near miss accident at the intersection in 2006 [87] - [96].
122 Nevertheless, the judge found, in effect, that the magistrate had misapplied or misdirected himself as to s 9(1) of the Act. As noted earlier, the reasons he gave were, in substance, first, that there was evidence, particularly from Mr McDonald, capable of supporting the prosecution case; secondly, that the magistrate failed to 'weigh up the advantages and disadvantages of requiring vehicles on the [Iowa road] to come to a complete stop before entering the intersection' [123]; and thirdly, that the magistrate had confined his consideration to 'limited and … insufficient matters' [125].
123 As to the first matter relied upon by his Honour, it is to be recalled that Mr McDonald in his report did not suggest that a stop sign should have been installed to contribute to the safety of the intersection in question. Insofar as Mr McDonald said that the purpose of a stop sign, as he interpreted it, was to give the driver an 'extra moment' to assess the road environment, that explanation was not accepted by Mr Johnston when it was put to him in cross-examination. Mr Johnston's evidence, referred to in [47] above, appeared to be to the effect that a stop sign facilitates the opportunity better to assess the road environment where visibility is a problem. In any event, it was open to the magistrate to accept the evidence of Mr Johnston in circumstances where Ms Selby had retracted her opinion and Mr McDonald had not recommended the installation of a stop sign. The magistrate's failure to refer to this evidence could not, in my respectful view, be regarded as signifying that the magistrate had misapplied s 9(1) of the Act or misdirected himself as to its operation.
124 As to the second matter relied upon by his Honour, it is to be recalled that the issue before the magistrate was not whether there should have been a stop sign, or no sign at all. Rather, the charge in particular (c), and the prosecution evidence, in effect raised for consideration a question as to whether a stop sign would have contributed to the safety of the intersection beyond the measure of protection provided by a give way sign. The magistrate referred to the effect of a stop sign, as opposed to a give way sign, in connection with the movement of traffic at the intersection (see [74] above). He had regard to the visibility of the intersection. He took into account the 'near miss' incident in 2006 and he had regard to the expert evidence and, in effect, accepted the expert evidence of Mr Johnston. In substance, his Honour concluded that the prosecution had not proved beyond reasonable doubt that the relevant hazard - a collision occurring at the intersection, particularly between a haul truck and a light vehicle - would be removed or mitigated by installing a stop sign in place of the give way sign.
125 The question for consideration before Allanson J was not whether the magistrate's decision to acquit was not open to him on the evidence in this regard (ground 22 was abandoned), but whether the magistrate's reasons disclosed that he had misapplied or misdirected himself as to the operation of s 9(1) of the Act properly construed. In my respectful view, when the magistrate's reasons are read as a whole, the second matter referred to by the judge was not made out as a ground for imputing an error of law of the kind imputed to the magistrate by the judge.
126 The third matter appears to be no more than a conclusory opinion based on the earlier two matters.
127 Accordingly, in my respectful view, the primary judge erred in finding that the magistrate misapplied or misdirected himself as to the operation of s 9(1) of the Act with respect to the prosecution's allegation that HWE had contravened s 9(1) of the Act by failing to install stop signs at the intersection.
Advanced warning signs of intersection (ground 2)
128 The substance of the judge's reasons in relation to this matter are set out in [84] - [85] above. The judge first referred to the evidence from which he concluded that the magistrate erred in fact in finding that the intersection was not hidden. As noted earlier, that conclusion was not, with respect, correct. Secondly, his Honour referred to the undisputed evidence as to the curve and angle of the intersection. The angle of the intersection was the subject of a specific prosecution particular, particular (a). The magistrate dismissed that allegation and found that the 'underlying safety issue' was not the angle, but the sight distance (M14). Whilst the angle and curvature of the road were relevant to the issues raised in particulars (d) and (e) of the prosecution's particulars, their significance related to the visibility of the intersection - upon which issue the magistrate's findings were adverse to the prosecution. Next, although the intersection had not been in use for a year, and was not in common use at the time of the accident, those matters were relevant to employees' familiarity with that particular intersection. The magistrate found that there were only two intersections on the FB road, of which the Iowa intersection was one. He also found that all employees with 'pit permits' had familiarity with the intersection and even employees, such as the deceased, who were not authorised to drive in the pit area, would have been aware of the intersection from HWE's training program (M20).
129 Insofar as the judge found that the magistrate did not consider whether warning signs would have lessened 'the risk of injury', the relevant question, with respect, was whether advance warning signs would eliminate or minimise the incidence or severity of collisions between haul trucks and light vehicles at the intersection. It is difficult, with respect, to read the magistrate's reasons as disregarding that question. The magistrate made specific reference to employees being familiar with the intersection, and that the intersection was not hidden (M20 - M21). The magistrate had made other findings about the angle of the intersection and its visibility generally, including from the FB road. When the magistrates reasons are read as a whole, including, in effect, his paraphrase of Ms Selby's question as to whether the layout of the intersection contributed to the incident, in my respectful view it could not properly be inferred that the magistrate had not directed his mind to whether warning signs would have eliminated or minimised the incidence or severity of collisions between light vehicles and haul trucks at the intersection.
130 As noted earlier, it is correct to observe that the magistrate did not refer to the evidence of warning signs being installed after the accident. However, that evidence went to the question of what was practicable; it did not constitute an admission of liability by HWE (see [94] above). There could be no doubt that the magistrate would have understood that signage was available for installation at no material cost. Similarly, the question of the 'degree of risk of … injury' was relevant to the determination of whether signage was 'practicable' in the application of s 9(1) of the Act (see definition of 'practicable' in par (a) of s 4). However, as noted earlier at [109] above, there could be no doubt (save perhaps on the question of 'suitability') (par (c) definition of 'practicable') that it was practicable to install a sign, if it were established by the prosecution that the sign would serve to eliminate or mitigate the hazard of collisions occurring at the intersection.
131 Accordingly, I would respectfully conclude that the respondent had not established, on the materials before Allanson J, that the magistrate had misapplied or misdirected himself as to the operation of s 9(1) of the Act in respect of the prosecution allegation concerning the failure to install advanced intersection signs. With respect, his Honour erred in that regard.
Use of haul truck warning signs (ground 3)
132 The substance of the primary judge's findings are set out in [86] above.
133 Insofar as his Honour relied on the evidence from which he concluded that the magistrate erred in finding that the intersection was not hidden, as previously discussed, that matter does not support an inference that the magistrate misapplied or misdirected himself as to s 9(1) of the Act. The fact that the intersection was recently reopened, and the fact that there may be variability in frequency in the use of different roads and intersections in the pit, might allow for the conclusion to be drawn that the prosecution had proved its case beyond reasonable doubt to the effect that a sign warning of haul trucks should have been installed on the FB road prior to the intersection in question. However, the magistrate found that warning signs of haul trucks in any area of the pit, including this area, would be 'superfluous'. That finding did not 'foreclose' consideration of the question raised in prosecution particular (e). Rather, it was the conclusion reached by the magistrate in consequence of his consideration of particular (e) in light of the evidence before him. He referred earlier, in particular, to Mr McDonald's evidence referred to in [58] above, and he also noted 'that other witnesses expressed their views that under these closed mine site conditions, such signs would have no use' (M21). The magistrate was evidently referring to such signs having no use in the sense that he was not satisfied that it was a measure which would serve to reduce the incidence or severity of collisions at the intersection.
134 Accordingly, I would respectfully conclude that the respondent had not established, on the materials before the primary judge, that the magistrate had misapplied or misdirected himself as to the operation of s 9(1) of the Act in respect of the prosecution allegation concerning the failure to install signs on the FB road prior to the intersection warning of the presence of haul trucks.
Ground 4
135 The primary judge did not err in failing to make a finding as to whether or not the requirements of s 31 of the Magistrates Court Act were met. There was no ground of appeal to his Honour to that effect and, accordingly, in that regard there could be no error by the primary judge in not dealing with that question.
136 Nevertheless, for the reasons given earlier, in construing the magistrate's reasons, account would need to be taken of the fact that, amongst other things, the magistrate's reasons were delivered within the context of s 31 of the Magistrates Court Act, and the respondent had not alleged that the reasons were insufficient for the purpose of s 31 of that Act, or otherwise.
137 I would not grant leave in respect of ground 4.
Ground 5
138 As explained by senior counsel for the appellant, ground 5 is to the effect that insofar as the primary judge did undertake a consideration of whether the magistrate's reasons were in compliance with s 31 of the Magistrates Court Act, his Honour erred as that was not an issue in the appeal before his Honour (appeal ts 43). I have referred earlier to the primary judge's criticism of the magistrate's finding of fact that the intersection was not hidden, apparently on the basis that the magistrate's reasons insufficiently disclosed the basis for the finding. It was impermissible, in my respectful view, for the judge to conclude that the inadequacy of reasons disclosed that the magistrate had erred in fact. The question of whether the magistrate had erred in fact was ultimately to be decided upon the evidence available to the magistrate, and not by consideration of the adequacy of his reasons, particularly where the adequacy of his reasons had not been challenged. As I would see it, the relevant error is not so much that his Honour undertook a consideration of whether the magistrate's reasons were in compliance with s 31 of the Magistrates Court Act, but that the reason he gave for finding that the magistrate erred in fact was not a permissible reason.
139 Whilst I would grant leave with respect to ground 5, I think it should be dismissed.
Ground 6
140 If his Honour was correct to find that the magistrate had misdirected himself as to, or had misapplied s 9 of the Act, it was appropriate for his Honour to remit the matter to the Magistrates Court of Western Australia for a retrial. However, as I would read his Honour's orders, on their proper construction, the retrial which his Honour considered appropriate was to be confined to particulars (c), (d) and (e) of the prosecution's case.
141 I would not grant leave with respect to ground 6.
Conclusion
142 For the foregoing reasons, I would allow the appeal in respect of grounds 1, 2 and 3. I would grant leave with respect to ground 5, but dismiss it. I would not grant leave with respect to grounds 4 and 6. The orders of Allanson J dated 23 January 2014 should be set aside.
143 MAZZA JA: I agree with Murphy JA.
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