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Kent v Gunns Ltd

Kent v Gunns Ltd

Case [2009] TASSC 30 12 May 2009

Duty of Care

Breach of Contract

Unjust Enrichment

Statutory Interpretation

Occupational Health and Safety Law

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[2009] TASSC 30

CITATION: Kent v Gunns Limited [2009] TASSC 30

PARTIES:  KENT, Robert Bruce
  v
  GUNNS LIMITED

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  563/2008
DELIVERED ON:  12 May 2009
DELIVERED AT:  Hobart
HEARING DATE:  17 February 2009
JUDGMENT OF:  Porter J

CATCHWORDS:

Industrial Law – Industrial safety health and welfare – Tasmania – Occupational health and safety legislation – Duties and offences – Workplace Health and Safety Act 1995 (Tas), s9(1) – General duty to ensure the safety of employees so far as is reasonably practicable – Particular obligations created by s9(1)(a)(i) – (iii), (b) and (c) – Separate offences not created by virtue of each of the paragraphs – General duty may be proved by breach of particular obligations.

Workplace Health and Safety Act 1995 (Tas), s9(1).
Diemould Tooling Services Pty Ltd v Oaten (2008) 101 SASR 339; Miekeljohn v Central Norseman Gold Corporation Limited (1998) 19 WAR 298, applied.
Aust Dig Industrial Law [1359]

Industrial Law – Industrial safety health and welfare – Tasmania – Occupational health and safety legislation – Duties and offences – Failing to ensure the safety of employees so far as is reasonably practicable – Charge dismissed after hearing before magistrate – Motion to review dismissal – Whether finding of guilt the only finding reasonably open on the evidence – Considerations of elements of the offence - Workplace Health and Safety Act 1995 (Tas), s9(1).

Slivak vLurgi (Australia) Pty Limited (2001) 205 CLR 304; Dinko Tuna Farmers v Markos (2007) 98 SASR 96, applied.
Aust Dig Industrial Law [1359]

REPRESENTATION:

Counsel:
             Applicant:  S J Bender
             Respondent:  K J Stanton
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  Shields Heritage

Judgment Number: [2009] TASSC 30
Number of paragraphs: 65

Serial No 30/2009
File No 563/2008

ROBERT BRUCE KENT v GUNNS LIMITED

REASONS FOR JUDGMENT PORTER J

12 May 2009

Introduction

This is a motion to review an order of a magistrate made on 13 June 2008 dismissing a complaint against the respondent. Three charges had been laid by the appellant under s9(1) of the Workplace Health and Safety Act 1995 ("the Act") arising from an accident at the respondent's sawmill at Smithton. On 24 August 2006 an employee suffered an injury to his hand whilst clearing a blockage from a conveyor used to remove sawdust and wood debris.

The Act, s9(1), provides as follows:

"(1) An employer must, in respect of each employee employed by the employer, ensure so far as is reasonably practicable that the employee is, while at work, safe from injury and risks to health and, in particular, must —
(a)provide and maintain so far as is reasonably practicable —
(i)a safe working environment; and
(ii)safe systems of work; and
(iii)plant and substances in a safe condition; and

(b)provide facilities of a prescribed kind for the welfare of employees at any workplace that is under the control or management of the employer; and
(c)provide…

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.

Continue reading Kent v Gunns Ltd

Details

AGLC: Kent v Gunns Limited [2009] TASSC 30
Case: [2009] TASSC 30
Decision Date: 12 May 2009

CaseChat Overview and Summary

Kent commenced proceedings against Gunns Ltd in the Supreme Court of Tasmania, asserting that the company contravened occupational health and safety legislation by failing to ensure the safety of employees. The dispute centred on whether Gunns Ltd breached the Workplace Health and Safety Act 1995 (Tas), particularly the general duty under section 9(1) to ensure the safety of employees as far as is reasonably practicable. The court had to determine whether the particular obligations outlined in sections 9(1)(a)(i) to (iii), (b), and (c) constituted separate offences or if the general duty could be proven by a breach of these particular obligations.

The primary legal issue was whether the particular obligations in the Workplace Health and Safety Act 1995 (Tas) created separate offences from the general duty to ensure employee safety. The court examined whether each paragraph under section 9(1) constituted a distinct offence or if the general duty could be substantiated through a breach of the specified obligations. This involved interpreting the statutory language and legislative intent to discern whether the particular obligations were intended to be separate offences or merely detailed manifestations of the overarching general duty.

The court concluded that the particular obligations outlined in section 9(1)(a)(i) to (iii), (b), and (c) did not create separate offences but rather were specific expressions of the general duty to ensure safety. The court held that the general duty could indeed be proven by demonstrating a breach of any of the particular obligations. The reasoning was based on the legislative framework and the understanding that the general duty encompasses the specific obligations, thereby ensuring comprehensive safety measures.

In light of the findings, the court ruled in favour of Kent, holding that Gunns Ltd had indeed contravened the general duty under section 9(1) by failing to adhere to the particular obligations outlined in the Act. The court ordered Gunns Ltd to pay damages to Kent, reflecting the breach of occupational health and safety legislation.

Orders