Linfox Armaguard Pty Ltd v Farrell - [2005] SASC 44

SUPREME COURT OF SOUTH AUSTRALIA
(Miscellaneous Appeal: Civil)
LINFOX ARMAGUARD PTY LTD v FARRELL & ANOR
Judgment of The Honourable Justice Anderson
21 February 2005
INDUSTRIAL LAW - INDUSTRIAL SAFETY, HEALTH AND WELFARE - SOUTH AUSTRALIA
Appeal from a decision of a Review Committee pursuant to s49 of the Occupational Health, Safety and Welfare Act 1986 (SA) - an Inspector had issued an Improvement Notice to the appellant indicating that the appellant was in contravention of s19(1) of the Act - the contravention involved high sound levels in the appellant's armoured vehicles, and the Improvement Notice required the appellant to implement suitable controls - the appellant then appealed to the Review Committee which concluded that the appellant had not complied with reg 2.10.3(3) of the Occupational Health, Safety and Welfare Regulations 1995 (SA) which sets out the action that must be taken by an employer to address excessive noise levels - whether Review Committee misinterpreted the meaning and purpose of reg 2.10.3(3) - whether Review Committee misinterpreted the meaning of 'reasonably practicable' - whether Review Committee erred in requiring the appellant to attempt to implement suggestions of expert engineer - whether Review Committee erred in its approach to the onus of proof - whether the Improvement Notice should have been cancelled because its terms were vague, ambiguous or uncertain - held: no error on part of Review Committee demonstrated, Improvement Notice not subject to cancellation because of vagueness, or ambiguity - appeal dismissed.
Occupational Health, Safety and Welfare Act 1986 (SA) ss19(1), 39, 49; Occupational Health, Safety and Welfare Regulations 1995 (SA) reg 2.10.3(3), referred to.
Simpson Ltd v Arcipreste (1989) 53 SASR 9, applied.

LINFOX ARMAGUARD PTY LTD v FARRELL & ANOR
[2005] SASC 44
Miscellaneous Appeal

Anderson J In this matter the appellant is appealing to this court pursuant to s49 of the Occupational Health, Safety and Welfare Act1986 (SA) (“the Act”) from a decision of a Review Committee.
The Act imposes various statutory obligations upon employers. In conjunction with these obligations, inspectors appointed under the Act are empowered to issue improvement or prohibition notices which require employers to take action to remedy various defaults in the work system.
An employer can ask for a review of any notice issued by an inspector pursuant to s42 of the Act. In this matter, following a request for a review, the President of the Industrial Court constituted a Review Committee, and in this case the Committee comprised an Industrial Magistrate pursuant to s47(6) of the Act.
The second respondent, Lee, had issued an improvement notice in this matter on 10 July 2003 which replaced an earlier notice. The notice indicated that the appellant was in contravention of s19(1) of the Act, and the relevant portion of the notice provided:
“In consultation with the employees monitor hearing and acoustic pressure of officers in Armaguard vehicles. Implement suitable controls both short term and long term to minimise hazard of closing doors on vehicles. Ensure engineering controls are implemented where possible. Provide training to employees. Provide report to Inspector.”
The issue arose because of noise created when closing doors in armoured vehicles operated by the appellant. The facts relevant to the decision in this matter are set out by the learned Magistrate in her reasons, and I now set them out hereunder as follows:
“14.I find the facts as follows. The applicant is a company that provides security services, including armoured vehicles, throughout Australia. It operates both two-person crews and three-person crews. The improvement notice and review are concerned only with the two-person crews.
15.In March 2003 Mr Gordon, who worked in a two-person crew, reported that he had suffered “a stinging and burning sensation” in his ear following collecting cash at Hahndorf. He believed that it related to the closing of the door to the mantrap of the Armaguard vehicle on which he was then working and gave evidence that he had been diagnosed as suffering from a perforated right eardrum, barotrauma and tinnitus.
16.The rear secured part of the two-person Armaguard vehicles is accessed via an armoured door which leads to a small receptacle big enough for one person and known as “the mantrap”. The internal part of the vehicle is then accessed by way of a further security door with a complex bio-recognition security system.
17.It is the closing of the external armoured door that creates a risk of noise-related injury.”
Whilst various administrative attempts had been made by the appellant to remedy the risk of worker exposure to the excessive noise levels, it was argued by the respondent that the employer did not address the problem correctly. The notice required compliance by 10 October 2003.
The powers of the Review Committee, pursuant to s43(1), enable the Review Committee at the conclusion of the review, to:-
“(a)   confirm any notice to which the review relates; or
(b)    confirm a notice with such modifications as it thinks fit; or
(c)     cancel a notice; or
(d)issue a notice or issue a different notice in substitution for the notice.”
The procedures of the Review Committee are dealt with in s48 of the Act:
“(3) A review committee––
(a)shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms; and
(b)is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks fit.
(4)A review committee shall give reasonable notice to the parties to proceedings before it of the time and place of those proceedings and shall afford the parties a reasonable opportunity to call or give evidence, to examine or cross-examine witnesses and to make submissions.”
In its amended notice of appeal, the appellant set out its grounds of appeal as follows:
“1.The learned Industrial Magistrate misinterpreted the meaning and purpose of regulation 2.10.3(3) of the Occupational Health, Safety and Welfare Regulations (in particular the operative structure of the regulation), and therefore misapplied the regulation to the facts before her;
2.The learned Industrial Magistrate misinterpreted the meaning of the phrase “reasonably practicable” contained within section 19 of the Occupational Health, Safety and Welfare Act 1986 and regulation 2.10.3(3) of the Occupational Health, Safety and Welfare Regulations, and therefore misapplied the concept to the facts before her;
3.The learned Industrial Magistrate held that the Appellant was required to attempt, test or adopt the suggestions of Mr Maddern in order to meet its obligations under the legislation, when this was not the standard required by the legislation and regulations;
4.The learned Industrial Magistrate imposed an onus of proof on the Appellant when an onus of proof was not appropriate in proceedings of this nature;
5.The Review Committee erred as a matter of law in not cancelling the Improvement Notice on the ground that the operative terms of the Notice were vague, ambiguous and uncertain.”
Before the Review Committee certain reports were tendered, and oral evidence taken. A major criticism made by Mr Stanley, counsel for the appellant, was that the Magistrate had misdirected herself in her instruction to herself regarding the onus of proof. It was argued that this misdirection influenced the other errors suggested by the appellant. Her Honour said at [25]:
“The employer bears the onus of proof to demonstrate that the improvement notice ought to be cancelled or modified.”
Counsel referred to a decision of the Full Court in Simpson Ltd v Arcipreste (1989) 53 SASR 9. That was a case stated by the Workers Compensation Appeal Tribunal. The case stated related to whether the tribunal had the power to direct a respondent worker to be dux litis in relation to whether the worker had sustained a disability arising from his employment.
Cox J, with whom the other two members of the court agreed, answered the case stated as follows at 14:
“A court or tribunal always has the power to decide which party shall be dux litis, but it is a power to be exercised judicially. Ordinarily, in an appeal by way of rehearing on the documents in which both parties are to be permitted to call new evidence, it is the appellant who will begin.”
In that matter Duggan J referred at 16 to the “usual onus of establishing grounds for reversing or varying a decision under appeal” as lying with the appellant, or in those circumstances, the employer.
Duggan J considered the nature of the appeal from the Review Officer in that case and conducted a comprehensive review of the relevant authorities. In particular his Honour considered whether it was an appeal stricto sensu, an appeal by way of rehearing or an appeal de novo. His Honour concluded, like Cox J, that the appeal was an appeal by way of rehearing on the documents, and in finding that the appellant bore the onus of proof Duggan J noted, at 21, that:
“There is a further consideration which supports the view that an appellant bears the principal onus before the Tribunal. At the time of the appeal a worker in the position of the respondent in this case has a determination in his favour entitling him to compensation. Although the operation of this determination may be stayed pending the result of the appeal, its status as a declaration of right in the worker’s favour remains until varied or reversed on appeal.”
These remarks seem to me to be equally appropriate in the present circumstances, where it is the employee’s entitlement to specific protection, rather than compensation, which is being challenged.
In my view, this was also a rehearing on the documents in which both parties were permitted to call new evidence. In paragraph [32] of her reasons, the learned Magistrate said, having reviewed the new evidence:
“In my view there is still a need for the particular improvement notice as the noise hazard still exceeds the statutory maximum and the content of the notice to provide an adequate means to address that noise hazard.”
The appellant was asking for a cancellation of the improvement notice, and it seems to me, was therefore required to show reasons why the notice should be cancelled.
In my view, the learned Industrial Magistrate clearly appreciated the nature of the review, and said at [7]:
“Review committee proceedings form part of the statutory improvement notice system. An improvement notice is designed to bring about immediate protection in lieu of, or pending, prosecution proceedings. The proceedings are a review, not an appeal, against a decision to issue an improvement notice. The review process is an appropriate check on the powers vested in an inspector.”
In paragraph [8] the learned Magistrate went on to say:
“The review committee is required to examine the factors known at the time of the issue of the notice – factors now known – and after reviewing the evidence decide whether the notice should stand, be cancelled or modified. The legislative goal that underpins the improvement notice system is ensuring the safest possible workplace.”
Her Honour then said at [10]:
“The specific questions the review committee must answer are, firstly, is there still a need for this particular improvement notice? Secondly, is the employer still contravening or still likely to contravene, or still likely to repeat a contravention of the act or regulations? Thirdly, will the measure specified in the review notice still remedy the matters occasioned in the contravention?”
It is my view that the learned Magistrate correctly instructed herself as to the nature of the review and what had to be established in order that the notice could be cancelled.
It may strictly be the case that the use of the words “onus of proof” by the learned Magistrate are not entirely appropriate in proceedings of this nature, but clearly the learned Magistrate, in conducting the review, directed herself correctly as indicated by the passage referred to above in paragraph 32 of her reasons.
The learned Industrial Magistrate then referred to reg 2.10.3(3) of the Occupational Health, Safety and Welfare Regulations1995 (SA) which states:
“If an employer is required to take action to ensure that an employee is not exposed to a noise level that exceeds the exposure standard an employer must –
(a)    firstly, implement so far as practicable, engineering noise controls in order to reduce the noise to which the employee is exposed; and
(b)    secondly, if compliance with paragraph (a) does not reduce the noise to which the employee is exposed to a level that is less than or equal to the exposure standard, implement so far as is reasonably practicable, administrative noise controls in order to reduce the noise to which the employee is exposed; and
(c)    thirdly, if compliance with paragraphs (a) and (b) does not reduce the noise to which the employee is exposed to a level that is less than or equal to the exposure standard, provide to the employee an appropriate personal hearing protector –
(i) that meets the requirements of AS 1270 Acoustic-Hearing Protectors; and
(ii) that has been selected according to the procedures specified in AS 1269 Acoustics-Hearing Conservation,
and, in addition, an employer must –
(d)    ensure that noise control measures are properly maintained; and
(e)    provide to the employee information and training about any noise control measure implemented under paragraph (c); and
(f)    ensure that personal hearing protectors (if required) are properly used and maintained.”
Thus it can be seen that an employer’s obligation, when required to take action, must be addressed having regard to the hierarchy which is set out in the regulation, first to implement as far as practicable engineering noise controls, secondly, if that does not work, to implement so far as is reasonably practicable administrative noise controls, and thirdly, if neither of the first two methods work, then to issue acoustic hearing protection.
The respondent argued that here the appellant failed to comply with the regulation because it purported to rely upon administrative controls pursuant to reg 2.10.3(3)(b). Such controls included signs warning and giving directions to employees. This was done before it first implemented or attempted to implement, so far as was practicable, engineering controls.
There was a report prepared by an engineer, Mr Maddern, which suggested some measures which could be taken by the employer. The respondent says that the appellant failed to exhaust all practicable engineering measures, and therefore had not complied with the regulations. The learned Magistrate agreed.
The grounds of appeal suggested that the learned Magistrate misinterpreted the meaning and purpose of s19(1) of the Act and the regulation as previously set out. In my opinion, the learned Magistrate did not misinterpret the regulation or the Act. On the facts of this case, the appellant, in my view, was required to exhaust all practicable engineering measures which might eliminate or reduce the noise.
The employer had a duty under s19(1) of the Act to “ensure so far as is reasonably practicable that the employee is, while at work, safe from injury and risks to health…” The word “reduce” in the regulation is used deliberately, in my view, to make it clear that at least available engineering measures should be tested to see whether the hazard can be reduced even if it cannot be eliminated. No testing was done by the appellant.
Her Honour took account of a report prepared by the appellant’s manager. This is set out at [18] of the reasons as follows:
“(1) Engineering controls: these purpose-built, high security vehicles have ballistic steel bodywork, internal panel and doors and specifically constructed ballistic restraint-restraint windows, both inside and out, therefore engineering controls that require cutting panels to insert pressure relief systems, replacing internal ballistic windows or enlarging internal vents, are not reasonable or practical for existing vehicles. Design modifications for future vehicles will be considered long term.
(2) Administrative controls: a safe operating procedure has been developed to address the process of closing the external mantrap door in a normal manner, entering vehicle and not slamming the door shut. All crews are being briefed on this SOP through notices and refresher training. The standard two-crew vehicle training module has been amended to reword existing instructions closing the mantrap door to emphasise not to slam the door shut. A PowerPoint visual training aid includes a very effective flashing instruction to highlight this point. A warning decal to instruct that the door must not be slammed shut has been developed and fastened to the inside of the mantrap door of these vehicles.”
It seems that the appellant took the view that any engineering controls should be a long term aim and therefore implemented administrative controls. The view expressed by the manager was as set out in the passage above, namely, that cutting panels, replacing windows or enlarging vents, were not practical options on existing vehicles.
Mr Maddern had suggested measures which he believed might remedy the problem. He said it was likely that the measures would reduce peak noise levels. Her Honour found at [29]:
“Engineering controls, and by that I mean the proposals suggested by Mr Maddern relating to venting, have not been attempted, tested or adopted. That is a matter that must be addressed by the employer in order to comply with the Act.”
The learned Magistrate also found at [30]:
“I do not accept that the cost of venting that has been put forward before me renders its introduction not reasonably practicable. This is especially so when taking into account the way in which noise is measured. A decrease of three decibels halves the energy of the noise hazard.”
A criticism is made that there is no specific finding that the engineering controls suggested by Mr Maddern would reduce the noise. That is correct but it is clear that such a finding was made by inference from the nature of the comments made in the passages above.
I believe the learned Industrial Magistrate was quite correct in interpreting the regulation because here the appellant clearly wanted to rely upon administrative controls without first exhausting any practicable engineering control. The regulation requires the employer to first implement engineering noise controls so far as practicable.
It was argued that the learned Industrial Magistrate misinterpreted the meaning of the phrase “reasonably practicable”. I cannot see any basis for this complaint as, on the facts, the Magistrate clearly believed that the use of vents as proposed by the expert witness, Maddern, was both a practicable means of attempting to at least reduce the noise hazard under the regulation and consistent with the duty under s19(1) of the Act.
The learned Magistrate clearly was of the view that the employer could discharge its duty under s19(1) by implementing “reasonably practicable” engineering modifications even though the regulation itself only referred to implementing “so far as practicable engineering noise controls”.
The suggestion, that both the cost and the requirement to bring the vehicles in for modification made the work impracticable, was rejected by the learned Magistrate. Clearly only one vehicle had to be modified at very small expense. Her Honour’s decision was that on the facts the use of vents was a practicable engineering noise control. I agree with that decision, and reject that ground of appeal.

It was further argued that the learned Magistrate was wrong in requiring the appellant to attempt to use the suggestions of Mr Maddern. The fact is that the appellant took no steps at all to even explore the possibilities of using the suggestions made by Mr Maddern. Moreover, as the respondent points out, there was nothing before the Review Committee to show that those suggestions were not reasonably practicable. In my view, the learned Magistrate was quite correct in her decision on this aspect. Mr Maddern’s suggestions were neither complicated nor expensive as I have said and should have been tried.
Finally, by consent, a further ground of appeal was added at the hearing of this appeal on the basis that the improvement notice should have been cancelled because its terms were vague, ambiguous and uncertain. This point was not argued before the Review Committee. It is not a requirement that an inspector give any direction because of the words of s39(3), and the use of the word “may”, as distinct from the use of the word “must” in s39(2). It would seem to me unreasonable in any event to try to justify cancellation of an improvement notice even if the words were to some extent vague, ambiguous and uncertain, where there remained a risk of continued high level noise with the potential to cause damage to a worker. If the terms were not clear then the appellant was at liberty to ask for clarification of them. It did not do so. In any event I do not accept that the words used in the notice were vague, ambiguous and uncertain.
For the reasons which I have expressed I dismiss the appeal.