Koenig v Western Power Corporation - [2003] WASCA 31

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: KOENIG -v- WESTERN POWER CORPORATION [2003] WASCA 31

CORAM: EM HEENAN J

HEARD: 11 OCTOBER 2002

DELIVERED : 7 MARCH 2003

FILE NO/S: SJA 1080 of 2002

BETWEEN: ALBRECHT ADOLF HEINRICH KOENIG
Appellant
AND
WESTERN POWER CORPORATION
Respondent

Catchwords:

Appeal - Justices Act 1902 - Electricity (Licensing) Regulations 1991 - Duty to report accident - Accident involving sudden discharge of electricity or otherwise of electrical origins - Authority of Director of Energy Safety to initiate and prosecute complaints

Legislation:

Electricity (Licensing) Regulations 1991

Electricity (Supply Standards & System Safety) Regulations 2001
Electricity Act 1945
Interpretation Act 1984

Justices Act 1902

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr N C Monahan
Respondent: Mr R E Birmingham QC & Mr R N Barsden

Solicitors:

Appellant: State Crown Solicitor
Respondent: Williams Ellison

Case(s) referred to in judgment(s):

Bateman v Hatton [1960] WAR 202
Bradshaw v Whalley, unreported; SCt of WA; Library No 4827; 22 March 1982
Brebner v Bruce (1950) 82 CLR 161
Gouldham v Sharrett [1966] WAR 129
Scott v Harry (1951) 53 WALR 1

Case(s) also cited:

Australian Casualty Co Ltd v Federico (1986) 160 CLR 513
Dairy Farmers Co-operative Ltd v Azar (1990) 170 CLR 293
Fowler v Police [1983] NZLR 701
R v Wilson (1991) 53 A Crim R 281

EM HEENAN J: The appellant, the Director of Energy Safety of the Office of Energy, Electrical Inspection Branch, charged the respondent, by complaint under the Justice Act 1902 issued in the Court of Petty Sessions at Mandurah on 10 August 2001 alleging the following offence:
"On 21st day of August 1999 at Serpentine River near Walter Street Coodanup, the [respondent] Western Power Corporation T/as Western Power, being a person who was aware that an accident that had caused or was likely to cause danger to life had occurred, failed to immediately report the accident to the Director; contrary to regulations 63(1) and 65 of the Electricity (Licensing) Regulations 1991 made under the Electricity Act 1945."
The respondent denied committing the alleged offence and the charge was heard before his Worship Mr R B Lawrence SM in the Mandurah Court of Petty Sessions on 8 May 2002. The trial proceeded on oral evidence and a statement of facts agreed by the parties. At the end of the hearing the learned Magistrate reserved his decision. On 4 June 2002 his Worship published written reasons for his decision that the respondent was not legally obliged to report the accident and thereupon dismissed the complaint.
By leave, granted by the order of McLure J on 15 July 2002, the appellant appeals from that decision. The single ground of appeal is that the learned Magistrate erred in law in determining that the respondent was not required by reg 63 of the Electricity (Licensing) Regulations 1991 (WA) to report the accident to the Director of Energy Safety.
A notice of contention has been filed by the respondent seeking that the learned Magistrate's dismissal of the complaint be affirmed on the following grounds additional to those relied upon by the learned Magistrate; namely:
"1.The Complainant [appellant] was not authorised to prosecute the complaint under the Electricity (Licensing) Regulations 1991;
2.The requirement to report did not arise in that:
(i)there was no 'accident' within the meaning of Regulation 63(1) of the Electricity (Licensing) Regulations 1991 and,
(ii)further, or in the alternative, the accident did not cause or was not likely to cause danger to life or damage to property."
At the hearing of the appeal the respondent did not pursue par 2(ii) of its Notice of Contention.

The facts

Oral evidence was adduced at the trial to supplement the agreed statement of facts. No express findings were made by the learned Magistrate with respect to this oral evidence but, except for one small minor issue, there was no controversy between the parties and the evidence was, to that extent, unchallenged. The exception, which I will mention more fully later, related to the extent of danger posed to a person on a barge at deck level caused by the discharge of electricity from an overhead line. Although not the subject of an express finding, the reasons for decision of the learned Magistrate plainly imply that his Worship was satisfied that there had been a potential danger to life or property by what had occurred.
At about 9.30am on 21 August 1999 a barge owned by Mandurah Jetty Construction and operated by Mr Derek Turner was travelling upstream on the Serpentine River near Coondanup. The barge was used for constructing and maintaining wooden jetties and was equipped with a pile driver and a large vertical derrick which was held in place by a series of metal stays or guy wires. The derrick, the stays and guy wires, the deck and hull of the barge were all made of steel. On this morning the derrick was in the fully extended position reaching a height of 13 metres above the water line. The steering position of the barge was behind, and separate to, the structure of the derrick and its supports. There was only one person, Mr Derek Turner, on the barge at the time.
At a point near Coondanup a three phase overhead 22 kv power line constructed in 1977 by the State Electricity Commission of Western Australia crossed the river in a north/south direction about 300 metres west of the boat ramp at Furnisdale. The power line consisted of three separate conductors suspended from wooden poles on either side of the river. The lowest of the three conducting lines across the river was approximately 11½ metres above the water level which was unusually high at the time because of the tide. The three conducting lines across the river were "live" or energised at the time. There were protective tripping devices installed which would cause the current to be cut off in the event of a large fault current suddenly flowing, such as would occur in a short circuit and in the events which happened on this occasion. The unchallenged evidence of the engineers was that these tripping devices would cause the electrical energy to the line to be cut off within a period of 0.7 to 1.5 seconds after the fault, for the line to be automatically re‑energised five seconds later, but if there was still a fault current for it to be cut off again for a second time within 0.7 seconds to 1.5 seconds, after which it could only be re‑energised by manual intervention from an operator or operators.
As the barge approached the point in the river crossed by the overhead wires, the extended derrick made contact with the lowest conductor and broke it. An eyewitness in a nearby house saw sparks shower on this contact and the line break with the two ends snapping back and falling into the river.
The barge operator, Derek Turner did not receive an electric shock as a result of the incident and was otherwise uninjured by it.
The eyewitnesses to the event, Mr and Mrs Allnutt of 8 Riverside Drive, Furnisdale, reported the incident to Western Power's Network Operations Control Centre (NOCC) by telephone at 0933 hours that morning. There the report was logged as Fault No 830284 with the following description:
"It's a river wire down!! A barge has brought down the wires across the river opposite this address."
The NOCC notified Western Power's on call lineman at the Western Power Mandurah depot (Andrew Parker) of the incident and directed him to attend to deal with it. Parker and a plant operator, Julian Trzebinski, both attended at the south side of the river where they found Turner and the barge on the south bank. Parker spoke to Turner who said "I hit the line, I usually get under the line but the tide was high". He also told Parker that he had not received an electric shock and was uninjured.
There was another person present at the site for a short while who did not introduce himself to Parker or speak to him. That person may have been Graham Heal. This person drove off in a vehicle a short time after Parker arrived. Parker proceeded to isolate the damaged portion of the line by operating a series of switches and then contacted the NOCC to describe the switching he had done so that the undamaged portion of the line could be re‑energised and a supply of electricity restored to customers in the area.
Parker telephoned for an additional crew to attend to assist with repairs. That additional crew comprised Steve West (linesman) and Bill Triplett who attended on the north side of the riverbank. Parker telephoned his supervisor, Russell Hickey, at the Peel Resource Centre and told him that he had found that a barge with an extended derrick had hit the line and brought down one of the conductors, that no one was hurt and that there was no damage to any property (other than the broken line itself). Turner also spoke to Hickey at the same time.
Parker completed repairs by connecting a new length of conductor wire to the broken end on the south side of the river. Turner carried the conductor across the river in his dinghy. West and Triplett reconnected the conductor on the south side of the river and tensioned it up to the pre‑existing height. Parker carried out some more switching to re‑energise the whole line and notified the NOCC by telephone of what he had done. The next working day, which might have been Monday 24 or Tuesday 25 August 1999, depending on whether or not the Monday was Parker's rostered day off, Parker recorded the incident in the Mandurah Depot log book in the following terms:
"21/8/99 - 5 Riverside Drive, Furnisdale 830284 0900‑1230 HV mains down across river JT AP"
Neither Parker nor any other officer of Western Power, nor Western Power Corporation itself, reported the incident to the Director of Energy Safety at the time.
Western Power Corporation is, and was at the time, a statutory corporation established pursuant to s 4 of the Western Power Corporation Act (1994). It is, and was, a Supply Authority for the purposes of the Electricity (Licensing) Regulations 1991.
It was accepted by the engineers that when the steel derrick struck the overhead power line an electrical potential difference between the 12.7 kv line and the zero volt potential of the water in the river was immediately created causing electricity to flow, virtually instantaneously, from the point of contact via the circuit created by the steel derrick and supporting steel stays to the deck of the barge and, thence, via the steel hull and structures of the barge to the water of the river. There was a difference in the evidence of the engineers as to whether the current, flowing along this short circuit, would have been evenly distributed along all available routes, or whether it would have been concentrated in the derrick or in one of the steel stays. This difference of opinion extended to a difference of view about the amount of electricity which would, or might, have flowed to any person who had been holding or touching, the derrick or steel guy wire at deck level at the time of contact. One engineer gave the opinion that, had the barge operator been holding a guy wire or other route by which the short circuit was created, he might have been exposed to an electrical source of the order of 1.75 to 2 kv (1750 to 2000 volts) and that this would have had the potential to kill. Another engineer, however, gave the opinion that on his calculations, such a person holding a guy wire at deck level would only have been exposed to about 4 volts of electrical potential and that this would not have been noticeable. There was no evidence to suggest that the barge operator, Turner, was holding or touching any part of the barge through which the short circuit actually flowed. On this issue the learned Magistrate accepted that no injury was caused to Mr Turner or to any other person but found that damage was sustained to the Western Power line of such a kind as to constitute danger to property. His Worship found that the touching of the power lines caused the electricity to earth, that the voltage was considerable and potentially could have caused severe injury or death. He concluded, in my opinion correctly, that in all the circumstances what had occurred caused or was likely to cause danger to life or property.

Relevant statutory provisions

By virtue of s 6 of the Electricity Act (1945) the respondent is a "Supply Authority" for the purposes of s 25, s 32, s 42 and s 53 of that Act. Section 32 empowers the Governor to make regulations necessary or convenient for carrying the Act into operation or for facilitating the operation of the Act. Pursuant to that power the Electricity (Licensing) Regulations (1991) have been made and of these reg 63 and reg 65 are of application to this case. These provide as follows:
"Regulation 63. Accidents to be Reported
1.Where an accident that has caused or is likely to cause danger to life or property has occurred any person who is aware of the accident or danger shall immediately report the fact to the Director and the relevant supply authority but if the person is an electrical worker in the course of his or her employment it is sufficient for the purpose of this regulation if the report is made to the employer of that person.
2.Any report made to an employer under sub‑regulation (1) shall be reported to the relevant supply authority and the Director.
3.In sub‑regulation (1) 'accident' - means an accident that results from a sudden discharge of electricity or that otherwise has, or may have, electrical origins.
...
Regulation 65. General Penalty
A person who fails to do anything that person is required to do under these regulations or does anything that that person is prohibited from doing under these regulations commits an offence and is liable, where no other penalty is prescribed, to a fine -
(a)in a case of an individual, of $5000;
(b)in the case of a corporation, of $20,000."
The "Director" referred to in reg 63 is not identified by the regulations themselves but is the "Director" referred to in the Electricity Act 1945 who is the Director of Energy Safety referred to in s 5 of the Energy Co‑ordination Act 1994. By s 7 of that latter Act, the functions of the Director are:
"(a)Those vested in the Director by or under -
(i)the Electricity Act 1945;
(ii)the Gas Standards Act 1972;
(iii)the Liquid Petroleum Gas Act 1956;
(iv)any other written law; and
(b)the provision of advice on safety and technical standards in the gas supply industry to the Western Australian Independent Gas Pipelines Access Regulator referred to in s 27 of the Gas Pipelines Access (Western Australia) Act 1998."
Clearly, these functions include those identified in the Electricity (Licensing) Regulations (1991) which, as I have noted, have been made under the authority and powers conferred by the Electricity Act (1945).

Issues at trial

A series of submissions on points of law were made to the learned Magistrate at the completion of the evidence in support of the respondent's contention that the evidence did not disclose that any breach of reg 63 had been committed by it. In summary, the submissions then made by the respondent were that:
(a)The Director of Energy Safety did not have the power to institute or prosecute the complaint.
(b)The event involving the breaking of the overhead power lines by the derrick on the barge was not an "accident" within the meaning of reg 63 because it was not an accident resulting from the sudden discharge of electricity or one that otherwise had, or may have had, electrical origins being, instead, entirely a "mechanical" accident resulting from the physical collision between the derrick on the barge and the overhead power line.
(c)This was not an accident which had caused or was likely to cause danger to life or property because neither Mr Turner nor any other person was injured by it.
(d)There was no obligation upon the respondent, Western Power Corporation, to report the accident because it was not a "person who is aware of the accident or danger". Awareness in this sense requires that the person or entity concerned has direct knowledge by personal observation or experience, is restricted to the first person who becomes "aware" of the incident and does not include other persons who, through other means, become aware of the situation whether by hearsay or other ways.
The learned Magistrate rejected each of the first three of these submissions, but upheld the fourth. In this regard his Worship said:
"The term 'aware' for the purposes of this legislation must equate to knowledge and not be interpreted in the general sense of awareness obtained by hearsay or other means.
It therefore follows that a person who has been personally involved in an incident constituting an accident within the meaning of the definition is legally obliged to report the accident to the relevant supply authority and the Director of Energy.
The regulation does not cast such an obligation on all persons or entities that subsequently become aware of the accident, although as a matter of common sense one would expect that Agencies responsible for the supply of electricity and safety issues pertaining thereto would automatically contact each other concerning such matters. The defendant being such an entity.
For these reasons I am not satisfied the defendant was legally obliged to report the accident and the complaint will be dismissed."

Issues on the appeal

By this appeal the appellant submits that the learned Magistrate was wrong in law to construe reg 63 as confining the obligation to report such an accident to the first person who directly became aware of the incident through observation or personal experience, while the respondent seeks to uphold the construction of the regulation, in this regard, adopted in the Court of Petty Sessions. Also, by its Notice of Contention the respondent renews it submissions, rejected below, that the Director did not have power to institute or prosecute this complaint and, further, that this was not an accident within the meaning of reg 63 because it was of mechanical origins. Accordingly, the logical order for the determination of these issues, in my opinion, is:
(a)Did the appellant have authority to initiate or prosecute the complaint?
(b)Was this break in the electrical transmission line caused by the collision with the derrick on the barge an "accident" within the meaning of reg 63 or was it exclusively mechanical in its nature?
(c)Was the respondent "aware" of the accident within the meaning of reg 63 so as to be under an obligation to report it immediately to the Director at Energy Safety?

Authority of the appellant to prosecute the complaint

The submission of the respondent, both on the appeal and in the Court of Petty Sessions, was that the general power of any person to prosecute for any offence, unless removed or qualified by an express statutory provision, had been repealed by s 6 of the Electricity Act, as it then stood, before its repeal and re‑enactment by s 68 of the Energy Corporations (Transitional and Consequential Provisions) Act 1994. Counsel for the respondent submitted that, under s 6 of the Electricity Act as it stood before the 1994 amendment, the function and the power to prosecute for offences under the Act or Regulations was conferred on the State Electricity Commission and its successor, so extinguishing the common law authority for others to bring a prosecution - Scott v Harry (1951) 53 WALR 1. The respondent then submitted that the repeal and re‑enactment of s 6 of the Electricity Act in 1994 did not revive the common law power for any person to prosecute for breaches of the Act or the Regulations - Interpretation Act 1984 s 37(1).

Had the position before 1994 been that only the State Energy Commission had the power to prosecute for breaches of the Electricity Act or regulations made thereunder, it may have become necessary to examine the Electricity Act and the Regulations as they appear since the 1994 amendment in order to scrutinise whether or not there was any express or implicit contrary intention to avoid the effect, acknowledged by s 37(1) of the Interpretation Act, that the repeal of an enactment which, itself alters the law, does not revive the law as it stood before the repealed enactment. However, the learned Magistrate concluded that the provisions of s 6 of the Electricity Act, as they stood before the 1994 amendment, did no more than direct that the State Energy Commission should have the administration of the Act subject to the Minister. His Worship concluded that the general administrative power expressed in the repealed legislation did not grant, either to the Commission or to the Director, an exclusive power to prosecute for breaches of the legislation or the regulations, being no more than a grant of general administrative power. In his Worship's judgment there was nothing in the grant of such administrative power to confer an exclusive power to initiate prosecutions nor to modify the general power, conferred by s 42 of the Justices Act, which provides that proceedings on complaint before Justices may be made or laid by the complainant in person or by his counsel or solicitor or by any other person authorised in that behalf. His Worship then adverted to the common law power of any person to prosecute for a penalty or an offence unless that right is abrogated by statute - Bateman v Hatton [1960] WAR 202 at 203 and Gouldham v Sharrett [1966] WAR 129. To the same effect counsel for the appellant cites the decision of Bradshaw v Whalley, unreported; SCt of WA; Library No 4827; 22 March 1982.
In my opinion the learned Magistrate was clearly correct in concluding that the power of any person to institute and prosecute a complaint for an offence under these Regulations was not removed or restricted either by s 6 of the Electricity Act as it stood before the 1994 amendments, or by the repeal and re‑enactment of s 66 in that year, or otherwise.
Brebner v Bruce (1950) 82 CLR 161, per Latham CJ at 164 ‑ 165 decided that there was nothing in the Post and Telegraph Act (1901 ‑ 1949) (Cwlth) to manifest any intention to exclude the operation of s 13 of the Crimes Act (1914 ‑ 1916) (Cwlth) permitting any person to institute proceedings for a summary conviction in respect of any offence against a law of the Commonwealth unless a contrary intention appeared in the Act or Regulation creating the offence. In dealing with a submission, very similar to that raised by the respondent in its Notice of Contention in this case, Latham CJ held that s 5 of the Post and Telegraph Act (1901 ‑ 1949), which provided that the administration of the Act and the control of the Department were vested in the Postmaster‑General did not restrict or qualify the right of any individual to prosecute for a summary offence. The learned Chief Justice observed that such a provision is incidental to the establishment of any department under a statute and has no bearing whatever upon the particular question as to the manner in which offences against an Act are to be prosecuted. Accordingly, I conclude that the learned Magistrate was correct in upholding the power of the appellant in this case to initiate and prosecute this complaint and, consequently, the contrary submission raised by the Notice of Contention must be rejected.

"Electrical" or "mechanical" accident

Sub‑regulation 63(1) defines an "accident" as meaning an accident that results from a sudden discharge of electricity or otherwise has, or may have, electrical origins. The respondent submits that the incident which brought down the overhead electrical wire at the Serpentine River on 21 August 1999 was not such an "accident" because the proximate cause of that mishap was the mechanical collision between the barge's derrick and the overhead wire. Counsel submits that it did not result from a sudden discharge of electricity or have electrical origins but, rather, that any discharge of electricity to earth resulted from the accident. As developed, the submission was that only incidents such as arcing from a transformer horn, or a fire started by transmission lines touching and arcing are properly the subject of a report because they have electrical origins or result from the sudden discharge of electricity. With all respect, this analysis appears to take an unduly narrow approach to the notion of "accident" focusing exclusively on the initiating factor rather than the nature and the potential consequences of the accident as it unfolds, even if only over a very brief period. In this case, for example, there is the evidence of the eyewitness of sparking being observed when the derrick touched the overhead conductor, of the line separating and the end snapping back, followed by the evidence of the electrical linesman of the need to isolate the area for the purposes of conducting repairs. It is also evident that, even if only for the briefest moment, the barge became "live" after the derrick contacted the power line and the electricity passed through the short circuit thus provided into the river as a result of the sudden discharge then occurring. In dealing with a similar submission raised at the trial, the learned Magistrate concluded:
"The purpose of the legislation is to ensure that matters of this nature are reported to the relevant authorities for the general protection of the community. I am of the view that it was Parliament's intention that the regulation be interpreted in the wide sense, not that the separate acts within the overall context of a set of circumstances be delineated in determining what constitutes an accident and/or the consequence of an accident. The act of the derrick touching the wire, causing the sudden discharge of electricity of electrical origin, was of such a nature when viewed objectively, as to be likely to cause danger to the life of Mr Turner and constituted the accident. The word 'accident', by definition, incorporates the act and or the consequences of the act. The circumstances of the matter before me are of such a nature as to constitute an accident within the meaning of a regulation as defined."
I respectfully agree with his Worship's analysis and I do not consider that further exposition is needed. For example, if as a result of a collision between two or more motor vehicles on a roadway adjacent to some electrical installation such as a switch yard, one of the vehicles were to career into the switch yard, and to strike electrical apparatus such as transformers, bringing down lines and resulting in the discharge of electricity with potential risk to the public, I consider that that would be an "accident" within the meaning of the regulation, notwithstanding that the initiating cause had been the collision on the roadway. Obviously, any dangerous discharge of electricity should be reported to the Director of Energy Safety so that steps can be taken to ensure that such a special danger is addressed by persons trained and competent in dealing with electrical problems and that where and when necessary accompanying steps can be taken to switch off the continuing supply of electrical energy. These necessary precautions for public safety need to be taken regardless of whether or not the incident which triggers the "accident" is not exclusively electrical. Accordingly, I reject the second ground raised by the respondent's Notice of Contention.

"Any person who is aware of the accident or danger shall immediately report --- "

As already noted, the learned Magistrate dismissed this complaint because he concluded that the obligation to report such an accident under reg 63 does not cast an obligation on all persons or entities that subsequently become aware of the accident to make a report having concluded that the term "aware" must equate to knowledge and not be interpreted in the general sense of awareness obtained by hearsay or by other means. This conclusion appears to have followed largely from the acceptance of submissions for the respondent, made at the trial and repeated on this appeal, that "any person" in reg 63 must refer to the first person who is aware of the accident because of the practical inconvenience which might follow and the prospect of many innocent onlookers who might happen on such an accident being exposed to liability for an offence if they failed to report it. It was submitted that the regulation should not be interpreted as requiring multiple reports from every person who "becomes aware", regardless of how tenuous the state of that awareness might be. On the respondent's case, the first person to become aware of the accident was the barge operator and it was him alone who had the obligation to report.
Counsel for the respondent also points to the Electricity (Supply Standards and System Safety) Regulations 2001 which, by Div 4 of Pt IV (regs 34 to 39) establish a detailed regime, including an accident/incident reporting obligation, to deal with the operation of electricity network assets including electricity transmission and distribution work. Counsel for the respondent submits that Parliament cannot be supposed to have intended to duplicate the reporting requirement for incidents that concern the same works/assets in different terms. However, I cannot accept this last submission because an examination of regs 34 to 39 casts the reporting obligation upon the network operator and not upon members of the public or any electrical worker. It can readily be supposed that there may be accidents which become known or apparent to members of the public or electrical workers before they become known to the network operator. It is the immediate danger which might arise from such an accident that, in the interests of public safety, dictates that it be reported immediately by whomever becomes aware of it. Once it is reported to a Supply Authority and the Director it is by no means inconsistent or superfluous that there should be another current obligation to report by a network operator to ensure that proper investigation and evaluation of the overall operating system is undertaken so that not merely the immediate danger created by the accident is addressed and removed, but also, that any necessary preventative measures be taken for the future.
The appellant submitted that the word "person" as used in reg 63(1) is capable of referring to a body corporate such as the respondent (Interpretation Act (1984) s 5 - definition of "person") and that the ordinary meaning of the word "aware" is "conscious, sensible, not ignorant, having knowledge" and that this was accepted by the learned Magistrate when his Worship concluded, in his reasons, that in the context of reg 63(1) it "must equate to knowledge". The appellant submits that the respondent had knowledge of the essential facts of the accident when the local resident, Mrs Allnutt, informed its Networks Operations Control Centre (NOCC) of the situation at about 0933 hours that morning. The appellant further submits that, as the need of the responsible authority to take rapid protective action in response to such an accident, is clearly the legislative purpose underlying this regulation, its application should not be limited to any person or individual who had been personally involved in the accident, as distinct from some person who had come across it or observed it without being involved in the course of events which led to its occurrence. I consider this submission is well‑founded and that the application of the regulation, and the corresponding obligation to report, cannot in any way depend upon whether a person was involved in the accident.
There is plainly some force in the submissions by the respondent that a court should recoil from an interpretation of the regulation which, if it involved a personal obligation to report by every person becoming aware of the accident, no matter how numerous these may be, might lead to exposure to liability for a criminal offence of those who would not be expected to be singled out for criticism or denunciation by the law. The response by the appellant that the Director could be expected to exercise a wise discretion and avoid initiating prosecutions in other than suitable cases seems only to be a very limited answer to this problem and one which is inadequate to protect an innocent bystander who might be the last of many on the scene. Although not raised in argument it is possible that such a person, as last instanced, may have a defence to such a prosecution under s 24 of the Criminal Code if he or she had an honest and reasonable belief that the accident had been reported to a responsible authority, such as to the police, to the Supply Authority, or to an emergency service who, in turn, would be under an obligation to report the matter to the Director of Energy Safety.
But this is not a case about a latecomer upon the scene of an accident, already being addressed by the appropriate authorities, failing to take action to report the episode, whether under the belief that the emergency was already being addressed by responsible authorities or for any other reason. It is about a case where a responsible member of the public, Mrs Allnutt had immediately reported the accident to the respondent's NOCC within a few minutes, at the most, of its occurrence. The respondent therefore had immediate notice of the accident and, in my view in addition to being under an obligation to take steps to address the situation and repair the damage, was also required by the regulation to report the incident to the Director of Energy Safety. It did not do so either immediately or at all and, consequently, this is not a case which involves the difficulties associated with numerous persons becoming aware of an accident and some of them failing to make a report, whether in the belief that it was unnecessary or that a report had already been made or otherwise. While it can be acknowledged that more difficult questions of interpretation of the regulation would arise if questions were posed, against this background, of whether or not Mr Derek Turner or Mrs Allnutt were likewise under an obligation to report the accident to the Supply Authority and to the Director and whether, in Mrs Allnutt's case, a breach of the regulation is avoided by her prompt action in reporting the incident to the Supply Authority but not to the Director, they are questions that do not arise in this case and are best left for resolution on another occasion if that ever becomes necessary. It is sufficient in the present circumstances to conclude that the respondent was informed of this accident by the telephone report of Mrs Allnutt very quickly and that it was, from that moment on, aware of the accident or danger, and was under the obligation imposed by the regulation to report the fact immediately to the Director, but failed to do so.
For these reasons I consider that this appeal should be upheld and that the orders of the Court of Petty Sessions dismissing the complaint and requiring the appellant to pay the respondent's costs should be set aside. Under s 199 of the Justices Act (1902) it is open to this Court to convict the respondent of the charge and to impose a penalty appropriate in the circumstances or, alternatively, to remit the complaint to the Court of Petty Sessions either with a direction to convict or for the determination by the Court of Petty Sessions of the penalty which should be imposed in the light of the conviction. I am prepared to hear submissions from counsel as to what course should be followed in the light of this decision.