Kirk & Anor v IRC of NSW

[2009] HCATrans 93

[2009] HCATrans 093

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S346 of 2008

B e t w e e n -

GRAEME JOSEPH KIRK

First Applicant

KIRK GROUP HOLDINGS PTY LTD

Second Applicant

and

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

First Respondent

WORKCOVER AUTHORITY OF  NEW SOUTH WALES

Second Respondent

Office of the Registry
  Sydney  No S347 of 2008
  No S348 of 2008

B e t w e e n -

KIRK GROUP HOLDINGS PTY LTD

First Applicant

GRAEME JOSEPH KIRK

Second Applicant

and

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR CHILDS)

Respondent

Applications for special leave to appeal

FRENCH CJ
GUMMOW J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 MAY 2009, AT 3.38 PM

Copyright in the High Court of Australia

__________________

MR G.J. HATCHER, SC:   May it please the Court, I appear with my learned friend, MR C.S. WARD, for the applicants in all three matters.  (instructed by David Lardner Lawyers)

FRENCH CJ:   There is a submitting appearance for the first respondent.  .

MR J.V. AGIUS, SC:   May it please the Court, I appear with my learned friend, MR P.M.  SKINNER, for the WorkCover Authority in each of the three matters – that is, the second respondent in the first matter and the respondent in each of the two other matters.  (instructed by WorkCover Authority)

FRENCH CJ:   Yes, Mr Hatcher.

MR HATCHER:   May it please the Court, in the early 1980s the various States of Australia took it upon themselves to codify the law in relation to industrial accidents.  The codification took place against the background of legislation in the United Kingdom, generally characterised as the…..legislation.

In each of the States a statutory duty was created upon employers to ensure the safety, so far as reasonably practicable, of their employees.  The failure to do that had criminal sanctions and the proceedings for enforcement in relation to the offence went before the Supreme Court or the Magistrates Courts with ultimate review by the Court of Criminal Appeal in each State.

In the late 1980s, New South Wales alone went on a separate course.  It modified the duty, removing any reference to “reasonable practicability”, such that the duty was then expressed in terms of the employer “shall ensure the safety of his employees”.  The question of reasonable practicability of taking steps to achieve that end was removed into a statutory defence, section 53.

The effect, so far as one can discern from the reading speeches sought to be obtained, was to ensure that the defendant bore the onus of establishing reasonable practicability.  That was a matter that agitated this Court’s attention in relation to the Victorian Act in Chugg v Pacific Dunlop where this Court found that the prosecutor needed to negative reasonable practicability in order to succeed in a prosecution.

Since that time the industrial accidents legislation in each of the States has pretty much remained in that sort of character – that is, New South Wales out on its own; Queensland has had some differences in that a specialist tribunal has a role in the enforcement – the Industrial Court of Queensland can hear proceedings for an offence but those proceedings are capable of review in the Court of Criminal Appeal in Queensland and ultimately before this Court.

In New South Wales, the late 1980s amendments sought to allocate the entire responsibility for hearing matters under the Act to the then Industrial Commission of New South Wales – it has changed its name a few times since then:  the Industrial Relations Court of New South Wales; presently the Industrial Court of New South Wales.  That court is said, by section 196 of the Act, to be essentially – and we can argue about the semantics of what I mean by “essentially” – but in effect is substituted for the Court of Criminal Appeal in appeals under the legislation.  That court has the benefit of a privative clause in section 179 purporting to prevent appellate review.

As a result of that, the only review, subject to some arguments we wish to advance, available from judgments of the Industrial Court has been reviewed by way of prerogative writ in the Court of Appeal.  The Industrial Court of New South Wales, we would submit, has developed an independent jurisprudence and the Court will have seen from our written submissions that we are not alone in holding that view.  It is a view that has been expressed in reports to the Government on why the current system ought be maintained – that is, it is thought by some to be a good thing that there is this island in Australian jurisprudence unaffected by the mainstream.  I apologise for the analogies, given what is coming before the Court later.

GUMMOW J:   The first of these three matters purports to be an application for leave to appeal directly from the Commission, does it not?

MR HATCHER:   Your Honour, the first matter is ‑ ‑ ‑

GUMMOW J:   S346.

MR HATCHER:   ‑ ‑ ‑ an application for leave to appeal from the Court of Appeal.

GUMMOW J:   No, it is the third one.

MR HATCHER:   The second and third, your Honour.

GUMMOW J:   Yes, the second and third are both from the Industrial Court, the Industrial Commission.

MR HATCHER:   Yes.

GUMMOW J:   And you are met, really, with an objection to competency, I think.

MR HATCHER:   We are.

GUMMOW J:   The question then is procedurally how would we deal with that objection to competency at this level?  In other words, if we were to grant you special leave in the second and third matters, that in a way concedes the point.  You see what I mean?

MR HATCHER:   Yes.  The way it has been dealt with in two other matters that have been before the Court raising exactly that same issue, and the way in which I think we would both submit is an appropriate way for the Court to deal with it, is to determine whether the matters that we would wish to agitate would otherwise warrant a grant of special leave and then reserve the question of special leave into the Full Court.

Can I say that as to the first matter – that is, the appeal or the application for leave to appeal from the Court of Appeal – in our respectful submission, that ought suffer the same fate in the sense that if we are right as to our contentions that an appeal lies from the Industrial Court or, more particularly, if we are wrong in that contention, it may have a very real impact on what jurisdictional review means in the Court of Appeal.

GUMMOW J:   You need an extension of time, do you not?

MR HATCHER:   We need an extension of time by, I think, one day in relation to the Court of Appeal matter.

FRENCH CJ:   There is no difficulty with that.

MR HATCHER:   We do need a somewhat lengthier extension of time in relation to the two Industrial Court matters, in our respectful submission.

MR AGIUS:   Your Honour, I think we have better arguments than that.

FRENCH CJ:   Yes, you have the extension.

MR HATCHER:   Thank you.  May it please the Court.  I am not at all sure I join in my friend’s observations.  The substance of the complaints that we bring against the judgment that our client has suffered in the Industrial Court are twofold.  There is a very specific complaint in respect of which we say we just have not had an opportunity to be heard on appeal and there is a more general complaint which we have not had an opportunity to be heard on appeal, but we have canvassed at some length in the Court of Appeal, unsuccessfully.  They are said not to be jurisdictional errors; at most, errors on finding of fact, so it is said.

Can I deal with the specific matter firstly.  Our client conducts a hobby farm, or did at the relevant time.  It is a hobby farm in respect of which his Honour found the director of the company, the personal defendant, the personal applicant in these proceedings, Mr Kirk, had neither the health nor the ability to manage himself.  He engaged a farm manager, an experienced farm manager, to manage the farm and Mr Palmer was in charge and he had quite significant authority.  The evidence was he had, in terms of ensuring the safety of those working on the farm, including himself, engaged contractors to put a roadway in that cost something in the order of a quarter of a million dollars, to ensure that no one would need to go down the steep slope that Mr Palmer was regrettably killed on using any manner of vehicle.  There was a road.

Mr Palmer purchased the vehicle that was the subject of the accident.  Mr Palmer read the operator’s manual.  Mr Palmer undertook instruction in relation to the operations manual.  Mr Palmer was charged with managing the use of the vehicle and deciding who would use it and in what circumstances.

Now, in the proceedings before his Honour Justice Walton at first instance, his Honour, in paragraph 105 of his judgment, goes to a series of things that he says Mr Kirk did not do and therefore the company did not do.  The complaint of our client before the Court of Appeal, before the Full Court of the Industrial Court, in relation to this one specific matter has been it is entirely irrelevant whether Mr Kirk did it or not.  The question is, did the company do it?  If the company – and the only person the company could realistically do it through was Mr Palmer – had ensured that the employees had their access to the ATV restricted and had satisfied himself that they were sufficiently experienced to use the ATV, then that would be an answer to the charge.

Now, of course, Mr Palmer could not be called to give evidence.  The employees were called, indeed the prosecutor tendered statements from the employees.  When one looks at those statements one sees differing levels of access, and they are not just the employees, they are also contractors who were on the farm at the time doing fencing work.  They had access to the ATV, bearing in mind all the time that “ATV” in fact stands for all-terrain vehicle.  They are not an uncommon device and not just on farms; they are an amusement device these days.

The evidence was that the employees and the contractors had differing levels of access to the ATV.  There is an inference available that Mr Palmer had decided at what level people would have access.  If Mr Palmer did that then the company had complied.  That was never considered by his Honour Justice Walton, never considered by the Full Industrial Court.  The Full Industrial Court became distracted by the notion of who was the corporate mind.  No doubt Mr Kirk was the corporate mind, but he was not charged with the responsibility of determining access to the ATV.

So in that very specific question of whether our client discharged its duty, our client challenged the judgment of the trial judge, was not heard on that question by the Full Court, and the Court of Appeal accepted that our appeal was never heard on that point.

BELL J:   Except the Chief Justice said – and I am looking at appeal book 310, paragraph 56:

This was not articulated as a separate basis for jurisdictional error on the part of a court, as distinct from a tribunal.

Then he went on to say:

Even assuming that such is capable –

et cetera.  Was this not a complaint before the ‑ ‑ ‑

MR HATCHER:   It was.  It was very definitely a complaint before the Court of Appeal.  They, in fact, reviewed our submissions, because one is always concerned when one sees that one has not argued jurisdiction in what is jurisdictional review.  There are some six pages of submissions addressing jurisdictional error.  Now, it is true ‑ ‑ ‑

BELL J:   I understood that his Honour here was referring to the way the matter was conducted below.

MR HATCHER:   I must say that is not the way we read it, your Honour.  I think it is reasonably clear ‑ ‑ ‑

BELL J:   I am sorry; all right.

MR HATCHER:   His Honour says:

no attempt was made to identify how the failure to deal with a specific submission constituted a misconception of its functions, etc.

I think his Honour is referring to the way it was conducted in the Court of Appeal.

GUMMOW J:   You are called a claimant, are you not, in the Court of Appeal?

MR HATCHER:   Yes, your Honour.

FRENCH CJ:   In paragraph 52 it says:

The claimants submit in the oral hearing before this Court -

and then there is a whole lot of material apparently from their oral submissions, and then 56 seems to refer to those same submissions.

MR HATCHER:   There were written submissions and one is, I hope, entitled to rely on one’s written submissions.  The fact is that the lines in Craig are hardly well drawn.  They do not sort of put a very clear border around what will constitute jurisdictional error and what will not, particularly in a circumstance where one is dealing with a statutory tribunal, a court, but nonetheless a statutory tribunal whose only power in dealing with crime is to deal with offences created under the Act.

GUMMOW J:   Am I right in thinking that there is some authority as to whether the New South Wales Industrial Relations Commission is a court of a State for the purposes of section 77(iii) of the Constitution?

MR HATCHER:   There is, your Honour.

GUMMOW J:   So it receives federal jurisdiction?

MR HATCHER:   It did in this Court.  Justice McHugh remitted a matter from this Court’s original jurisdiction to the Industrial Court – Veta Ltd.  In our respectful submission, that is the first matter, and we say it is a matter of general application.  The more general matter that we would wish to canvass in relation to the way in which the Industrial Court approaches its jurisdiction is, in our respectful submission, that because there is if not a unified then a unifying approach to Australian law, the court ought have regard to judgments of this Court that we say have application to the exercise of its jurisdiction.

For instance, when one comes to consider what is reasonably practicable, the assistance this Court gave in Vairy, albeit in a common law case, but talking about the considerations that need to be taken into place, if they were taken into place in relation to this farm, a conclusion that there needed to be a risk assessment and specific training done on the ATV would mean every implement on the farm was in like category, because an employee can injure themselves on anything if they are negligent or disobedient. 

His Honour the trial judge did not ever concern himself with whether our client required the employee to use the ATV in his work; it was whether he had access to the ATV.  Now, how reasonably practicable might it be for all those farms in the State of New South Wales to be having their farm managers or, on the court’s finding, the owner of the business – the controlling mind of the business – doing risk assessments on every implement that employees might have?  Yet his Honour Justice Hayne in Vairy says that if you find that something is reasonably practicable it must be against the context of every similar circumstance being done.

When one says that warnings must be given and how one links causation from warning to elimination of the risk, one must have regard to what this Court said, in our submission, in Commissioner of Main Roads v Jones where his Honour Justice Callinan was at pains to point out that you need to be satisfied that putting a warning sign up would do something, would discourage the conduct.

Now, we are talking in this case about employees who have in some cases 50 years experience on farms.  To suggest that saying to them, “Read the operations manual” would lead to some alteration in the way in which they might approach the task of operating what is essentially a four‑wheel motorbike, the question of causation is not immediately linked, in our respectful submission, and the court does not have regard to the judgment of this Court in Commissioner of Main Roads v Jones.

When one thinks of how the task might be approached of ensuring safety, just how far do you have to go?  One might think that the court would be assisted by this Court’s judgment in Thompson v Woolworths, where this Court said you can never have a risk‑free dwelling house.  You must make assumptions that people will act rationally, that people will act in a reasonable fashion to secure their own safety.  So when it comes to the common law of Australia, people are entitled to make that assumption, but when it comes to the application of the Occupational Health and Safety Act, in New South Wales alone people cannot make that assumption; they must assume they are dealing with a disobedient person who will go off and access anything that is available to them.

If one has regard to this Court’s judgment in Sheen v Fields, a case that dealt with industrial safety legislation, this Court said you need to have regard to the likelihood of risk of injury to the employee doing the task that he is allocated to do.  You do not get involved in this hypothetical risk analysis that the Industrial Court does regularly in its jurisprudence.

Now, in our respectful submission, these are questions of general application.  The Court will have seen in our bundle we included a recent judgment of the Industrial Court of New South Wales in Inspector Patton v Western Freight Management.  I will not trouble the Court with it at the moment.  I appreciate it is getting very late in the day and no one wants to go trawling through bundles.  But can I just give the Court a reference to paragraph 25 of his Honour’s judgment, which is at 361 in the bundle, where his Honour said this – this is his Honour the present President of the Industrial Court of New South Wales.  His Honour said:

It cannot be said, therefore, that the Industrial Court has construed the provision so as to make it impossible of compliance.  As I noted earlier, the defendant submitted that it was clear that no employer

could secure the health and safety at work of a truck driver:  “Roads have collapsed, other drivers stray onto the wrong side of the road, buildings collapse onto roadways, storms can create hazards.  In short, any amount of things can happen which can result in the truck driver’s health and safety at work being anything but secure.”  Provided the employer has assessed the risks and has done all that is reasonably practicable (hardly an onerous duty) to equip a driver to deal with the unexpected, including the provision of information, instruction, training and supervision, and has in place practical measures to avoid fatigue or drugs or alcohol being factors . . . it is difficult to envisage how the employer could be penalised in the circumstances described by the defendant.

His Honour says all that is reasonably practicable in the context of the employer having assessed the risks.  Now, if that risk assessment – and the Industrial Court has a very stern focus on risk assessments – if that is to be anything other than a paper document every road that the driver is to go down has to be assessed for the risks that might occur, and presumably in respect of all weather conditions.

We are talking about legislation that is being applied in a way, in our respectful submission, that it is impossible to comply with.  If you are charged, you will be prosecuted and any recourse to the statistics in the jurisdiction makes good that proposition.  There have been no more than a handful of acquittals in the last decade.

In our respectful submission, the rule of law is assumed to operate under our Constitution and binds New South Wales as much as any individual in the Commonwealth. If the rule of law applies, the criminal law ought be interpreted in a way consistent with the rule of law; it ought be interpreted in a way that it is capable of being complied with. Now, there are various formulations that have been adopted in the English authorities – I am sorry, I see the red light – the test has been to a reasonable standard of care, and we have extracted the judgment of her Honour Justice Gaudron in Slivak v Lurgi.  May it please the Court.

FRENCH CJ:   Thank you, Mr Hatcher.  Yes, Mr Agius.

MR AGIUS:   Your Honours, most of what my friend had to say has to deal with findings of fact and ‑ ‑ ‑

BELL J:   Is that right?  When one looks to the Chief Justice at paragraph 56, page 310 of the application book, and Justice Hodgson, who considers it arguable that the primary judge was in error in failing to address what appears to have been the principal case – this is at 62 on page 311 ‑ ‑ ‑

MR AGIUS:   He says it is arguable, your Honour, but the issue there is a factual finding. 

BELL J:   Is not the issue that the primary judge did not address it?

MR AGIUS:   No, your Honour.  The primary judge addressed the prosecution in this way.  The company has an obligation under the Act.  How is it alleged that the company was in breach of that obligation?  The prosecution case was that the company was in breach because Mr Kirk delegated, or purported to delegate, its responsibility under the legislation to Mr Palmer.  That was not a sufficient compliance with the obligations under the legislation.  That was the prosecution case.  The directing mind of the company, Mr Kirk, was the person who appointed Mr Palmer to manage the farm.

The issue was, was that an adequate dealing with the company of its responsibilities under the Act?  Justice Walton found that it was not; he found that it was not enough for Mr Kirk in the circumstances of that case, because of the control that he exercised, to have simply delegated the responsibilities to Mr Palmer.  He did find breaches by the company, which included breaches by Mr Palmer.  They were not all breaches by Mr Kirk, but the primary finding of fact made by Justice Walton, the Vice President, was that Mr Kirk was the mind of the company, he was the driver of the company, he was the company in any practical sense, and that through him the company had done a number of things and through him the company had been in breach of its obligations, and one of those breaches was the delegation to Mr Palmer in the circumstances of this case.

This can be seen by an examination of the judgment before Justice Walton.  It was not just that Mr Kirk was the directing mind of his company; it was that he was in total control of the business, and his Honour never found that that control passed entirely to Mr Palmer.  His Honour found that Mr Palmer was engaged to manage the farm, as indeed was the prosecution case, but that that was not a sufficient dealing by the company which satisfied its obligation which is an absolute obligation under the Act.

At application book 14, paragraph 22, a finding of fact, which was not contested before Justice Walton, was Mr Kirk’s evidence that he held total control over the business activities of the company:

In the circumstances, I am satisfied that Mr Kirk was a person in a position to influence the conduct of the Company with respect to its duties under the Act.

At paragraph 24, the third line:

Mr Kirk had no farming experience, and engaged Mr Palmer to manage the Farm –

If we go on in the judgment to application book 45, his Honour makes a finding of fact:

In my view, the evidence demonstrates, beyond reasonable doubt, that Mr Kirk (and therefore the Company –

had not done a number of things.  His Honour made a finding of fact that it was Mr Kirk who was acting as the company and one of those, at subparagraph (j) on application book 46, was that he had:

relied on Mr Palmer to give instruction and training without equipping him with the knowledge or tools to undertake those duties, and without supervising or monitoring his performance of those duties -

At application book 47, paragraph 110:

It was the prosecutor’s contention that the Company may not purport to confer all responsibility for health and safety in the workplace on Mr Palmer, and in particular in relation to the operation of the ATV, and then take no measures to ensure that Mr Palmer was properly carrying out those responsibilities -

and then his Honour dealt with the law in relation to that and then dealt with the defendant’s submission, which was not that Mr Palmer was the company for the purpose of the prosecution, but the defence submission, set out at 049, at the bottom, paragraph 112, they were essentially twofold.  One, there was no inherent risk associated with using the ATV and, two, that it was not foreseeable that Mr Palmer would ride down the side of the hill without regard to the relevant information contained in the manual.

Now, that is the substance of the defence.  There is no defence run before Justice Walton that the company was Mr Palmer and not Mr Kirk.  There is no defence that the company was entitled to delegate the whole of its responsibility to Mr Palmer.  It was the prosecution case, on the contrary, that it was not entitled to do so without undertaking certain inquiries in relation to Mr Palmer.

If we go to application book 78 at paragraph 151, his Honour sets out what the relevant risks were.  At 151:

there was a clear risk . . . that the ATV could overturn (or otherwise unbalance) in various circumstances:  clearly a situation of potential danger to the health and safety of people at the Company’s workplace.  In this case, it is only necessary to consider two limited classes of such circumstances.  First, off-road driving . . . The existence of these risks required the exercise of a managerial mind to establish a safe system for a vehicle which, by its description and nature, may involve some off-road use or towing.  The Act charged the defendants –

and that would be the company and Mr Kirk as a director of the company:

to eliminate these risks to health and safety; the prosecutor has charged that (through failures of systems . . . they failed to do so.

The Company’s obligation under the Act to establish a system to eliminate the risk of the ATV overturning when driven off-road or when used for towing –

They are the risks.  If we go to 80 ‑ ‑ ‑

GUMMOW J:   What is this seeking to demonstrate, Mr Agius?  This is a special leave application after all is said and done.

MR AGIUS:   Your Honour, I am seeking to meet a case that was brought against us on a special leave application that Mr Palmer was the company for the purposes of the Act and that neither at first instance nor on appeal did the court look at what were the breaches of Mr Palmer.  My first proposition is that it was never the prosecution case nor was there a finding nor was it argued before the trial judge that Mr Palmer was the company.  It was the prosecution case that Mr Kirk was the directing mind of the company and that he maintained overall control of the company and that he purported to delegate matters to Mr Palmer without satisfying himself about Mr Palmer’s capacity.  I am seeking to rebut the case that is being put.

At 80, at paragraph 153, about 10 lines from the bottom, his Honour speaks of obligations which were imposed and fell squarely on the company, and that the company’s obligations did not end here, but his Honour says:

By purporting to delegate all responsibility for health and safety to Mr Palmer, the Company has neglected those duties . . . the Company took no steps to ensure that Mr Palmer had the necessary skills to conduct a risk assessment, to provide or arrange training, to instruct others –

So the obligation that the company was charged with being in breach of was an obligation to ensure health and safety and it had breached that obligation by attempting to delegate the whole of its obligation to Mr Palmer.  Then there are a number of findings on 81, 82 and 83 which relate to breaches that could only encompass breaches by Mr Palmer himself.

It has been argued against us today that there was no evidence and no consideration of whether Mr Palmer himself had satisfied the obligations of the company.  In fact, there are findings that he had breached them and those findings appear at 81, 82 and 83.  In relation to the company, at 81, about line 14:

The Company took no steps to disseminate the information in the Owner’s Manual to those who used the ATV on the Farm:  it is plain on the evidence that no employee or contractor, other than Mr Palmer, had been given a copy of the Owner’s Manual and Mr Palmer had received it by dint of taking possession of the ATV, not due to any independent instruction –

That is a failing of the company, but it is also a failing, if the obligation was on Mr Palmer, of the company’s duties in respect of its other employees and its contractors, because those employees and contractors, as a matter of fact, had not been given access to the manual, and his Honour found that that created a risk of injury.  At the bottom of 82, this is as good a finding against Mr Palmer as it is against the company or Mr Kirk:

Employees and contractors used it off‑road.  Nor were instructions given as to driving the ATV on slopes (of whatever gradient).

At the top of 83, paragraph 157, at about line 8:

I have found that there was no system in place in relation to towing with the ATV –

Halfway down paragraph 158:

I have found, as a matter of fact, that none of the Company’s employees or contractors were instructed or trained in relation to the use of the ATV beyond an initial demonstration of the basic functions of the vehicle . . . there is no way that the perfunctory introduction to the ATV provided to employees and contractors (including Mr Palmer) could be said to have fully equipped them to safety perform work (including towing) with the ATV –

At 85, line 20 of paragraph 162:

there was clearly a foreseeable risk (spelt out in the Owner’s Manual) that the ATV would overturn when driven off‑road or when used to tow things and yet nothing was done to ameliorate these risks.

That is a general finding.  Nothing was done to ameliorate the risks that if this was driven off‑road there was a risk to health and safety.  This property was very, very steep.  There are positive findings of fact that nothing was being done in respect of a number of risks, not just things not being done by Mr Kirk, but things not being done at all, which would include Mr Palmer.

So even if this went on appeal and there were questions of fact as to who did what, the findings of the trial judge who heard the evidence are that the company itself, including Mr Palmer, failed in a number of respects.  Now, in our respectful submission, that would mean that none of these three appeals would have any prospects of success.

There are, in addition, other bases upon which the special leave application should be refused.  When the Full Bench came to deal with this matter, it dealt with it on the basis that it found that there had been a delegation to Mr Palmer, but that that had not been an adequate response to the company’s obligation under the Act, and that simply delegating the matter to Mr Palmer was not a sufficient dealing with the company’s responsibility.

They were findings of fact, and if that is right it does not matter whether or not Mr Palmer was doing things.  It does not matter whether or not there was evidence as to what Mr Palmer was doing.  If the very delegation to Mr Palmer was in fact a breach of the Act, the offence was made out.  Now, these are findings of fact by the trial judge and by the Full Bench when it heard the appeal.  This Court cannot lightly overturn those.  They are findings of fact based upon the evidence.  They are findings of fact which were not challenged.  The argument that Mr Palmer was the company was never raised before Justice Walton.  It was just never put before him.

FRENCH CJ:   I think we got that message earlier.

MR AGIUS:   Thank you, your Honour.  Your Honour, in relation to whether or not these offences are capable of compliance, the offence needs to be looked at in its statutory context.  The statutory context is that the obligation to ensure health and safety is absolute, but then there is the provision of a statutory defence and that defence puts the onus on the defendant to prove one of two things, either that it was not reasonably practicable for the person to comply with the provision of the Act or that the commission of the offence was due to causes over which the person had no control.

One should not simply look at the offence itself, because it is not as though there are no defences; it is not a case of absolute liability and no defences at all.  It is absolute liability with defences.  Now, the defence that was run in this case was that the particular risk of the machine over‑toppling on Mr Palmer and him dying was not foreseeable, and his Honour found as a matter of fact that it was foreseeable, but also found as a matter of law that foreseeability was not an element that the Crown had to prove.  But as a matter of defence, his Honour did not accept on the balance of probabilities that it was not foreseeable.

So there is no question of the defendant being denied an opportunity to make out a defence and it does not matter, with respect, that New South Wales is the only State which creates an absolute liability in an employer in relation to the health and safety of its employees or the employees of others.  That is an irrelevant submission and it is not a submission that, in our respectful submission, is one that ought to support a grant of special leave.

The Parliament in New South Wales has in 2000 repealed the 1983 Act and reintroduced an Occupational Health and Safety Act which, in material respects, is no different to the provisions in the 1983 Act, in the knowledge that a superior court of the Industrial Commission in court session had held that the offences under section 83 were absolute offences and in the knowledge that the defences which were there were defences which placed the obligation of reasonableness upon the defendant.  When the new Act was enacted in the year 2000 those provisions were again re‑enacted.  So this is clearly the intention of Parliament that the Act operate in that way.  This is a matter that was taken into account by the Chief Justice when he dealt with the matter in the Court of Appeal.

As a matter of statutory construction, in our respectful submission, it does violence to the language to read into the offence‑creating provisions any concept of reasonableness when reasonableness is put into the Act as a matter of defence, where the onus is on the defendant.

My friends also raised in their submissions the Proudman v Dayman defence, which was never run below.  It appeared for the first time in the Court of Appeal.  I see that the light is on, your Honours.

FRENCH CJ:   I think you had a bit of extra red time at the beginning.

MR AGIUS:   They are our submissions, your Honour.  We also rely upon our written submissions.

FRENCH CJ:   Yes, thank you, Mr Agius.  Yes, Mr Hatcher.

MR HATCHER:   It was not and is not the applicant’s submission that Mr Palmer was the company.  The submission is that the company nonetheless fulfilled its duty through Mr Palmer.  Mr Kirk was the controlling mind, Mr Palmer was the manager.  Mr Palmer was asked to discharge the duty.  At paragraph 116, page 51 of the book:

It was the defendants’ submission that “there was in place a practical and operational system of safety, which was adhered to at all times by its employees and contractors with the obvious exception of the actions of Mr Palmer on the day of the accident.  There is simply no evidence to suggest that any of the employees or contractors who operated the ATV from time to time were exposed to any level of injury or risk as a result of that operation”.

Can I remind the Court of our written submissions, paragraph 7 of the submissions in reply at page 417 of the book, as to the level of access and the instructions that were given.

My friend refers to his Honour’s findings of risk at paragraph 151 on page 78 of the book.  If one has regard to paragraphs 51 and 52, which are to be found at page 26 of the book, your Honours will see the expert evidence in relation to the risk and the conclusion at 52:

There was no evidence of the speed at which Mr Palmer was operating the ATV at the time of the accident, or whether he was applying the correct braking technique for downhill riding.  However, I am satisfied beyond reasonable doubt that the gradient of the terrain, the nature of the slope’s surface, the total mass of the vehicle, and the improper hitching of the steel to the ATV’s racks rather than to the tow bars were factors which, when combined, led to the ATV overturning -

It is not just a risk of going off‑road on the expert evidence.  Your Honours will also find a finding by his Honour in paragraph 76, page 33 of the book, from the fourth line:

It should be noted that the submission of the defendants often blurred the distinction between the elements of ss15 and 16 of the Act and the defence available under s53.  However, there is no evidence that the ATV was unsuitable for use off‑road, or that it was an inherently unsafe practice to operate the ATV on the side of a hill (beyond the specified limits in the Owner’s Manual).  That is not to say that extreme caution should not have been exercised when riding the ATV off‑road, particularly given the nature of the terrain at the Farm.  However, the gradient was within the specified operational limits of the ATV, although it was certainly close to those limits.

They are findings on risk, and then we get to the end and we find that there is this general risk that any employee may use the ATV off‑road and thereby expose himself to risk.  Now, his Honour’s approach is entirely consistent with the jurisprudence in that tribunal.

GUMMOW J:   Do you want to say anything about Proudman v Dayman?

MR HATCHER:   We do submit that Proudman v Dayman is available in respect of this and that that court says that it is not available in this jurisdiction, but that is very much at the margins of the case, we would wish to advance before this Court.  May it please the Court.

FRENCH CJ:   Thank you, Mr Hatcher.

We are of the view there should be a grant of special leave in S346 of 2008 and that the application in respect of the other two matters should be referred to a Full Court and I think those two matters, Mr Hatcher, will require the issue of 78B notices.

MR HATCHER:   Yes, fresh 78B notices, your Honour.

FRENCH CJ:   Yes, all right.  Thank you.  The Court will now adjourn and will reconstitute in a moment for directions in the other matter.

AT 4.26 PM THE MATTERS WERE CONCLUDED