Markos v SouthLink Pty Ltd

[2010] SASCFC 40

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Application)

MARKOS v SOUTHLINK PTY LTD

[2010] SASCFC 40

Judgment of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice White and The Honourable Justice Peek)

19 October 2010

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY

INDUSTRIAL LAW - SOUTH AUSTRALIA - OFFENCES - APPEALS

Application for permission to appeal in private - whether Full Bench of Industrial Relations Court erred in quashing respondent's conviction - no issue of principle identified - hearing of the appeal would involve close review of facts - respondent has been acquitted - not an appropriate case for permission to be granted - application refused.

Fair Work Act 1994 (SA) s 191(1)(b); Occupational Health, Safety and Welfare Act 1986 (SA) s 19(1), referred to.

MARKOS v SOUTHLINK PTY LTD
[2010] SASCFC 40

Full Court:       Doyle CJ, White and Peek JJ

1. THE COURT:      Mr Markos has applied for permission to appeal against a decision by the Full Court of the Industrial Relations Court. Permission to appeal is required by s 191(1)(b) of the Fair Work Act 1994 (SA).

2. The Full Court of the Industrial Relations Court dealt with an appeal against a decision by an Industrial Magistrate.  Bearing in mind that there has already been an appeal on the merits, this Court will usually grant permission only if there is a point of principle that warrants a further appeal.  The Court will not usually grant permission to appeal for the purpose of re-visiting findings of fact for a second time.

3. Mr Markos laid a complaint against the respondent under s 19(1) of the Occupational Health, Safety and Welfare Act 1986 (SA). The complaint was that on 15 September 2005 at Elizabeth, being an employer it failed to ensure so far as was reasonably practicable that its employee, Mr Tedesco, was while at work safe from injury and risk to health.

4. The substance of the charge was that the respondent failed to install a handbrake alarm system which would have warned Mr Tedesco if he left the bus he was driving without having engaged the handbrake.  On the occasion in question Mr Tedesco stepped out of the bus that he had been driving.  He used an external mechanism to close the doors of the bus.  He had forgotten to apply the handbrake, and so the bus was without brakes.  The bus moved forward and ran over Mr Tedesco, killing him.  The complainant argued that an alarm system should have been fitted to the bus that would have warned Mr Tedesco, before he left the bus, that the handbrake was not engaged. 

5. After a trial, an Industrial Magistrate found the respondent guilty. 

6. On appeal to the Full Court of the Industrial Relations Court, that Court quashed the conviction.  The order of the Full Court did not substitute a finding of “not guilty”, but that appears to have been the intent of the Full Court.  It did not order a re-trial. 

7. There was no dispute that by November 2004, as a result of what was called “a runaway bus” incident, an incident where the driver left the bus when the brakes were not on, the respondent was aware of the risk in question.

8. The respondent had been operating buses of the kind in question since 2000.  The central part of the reasoning of the Full Court appears from the following passages in its reasons:

   [44]As contended by the appellant, the charge is not for failure to carry out a written hazard identification. The terms of the charge reiterate the wording of s 19(1). The appellant’s point is that in all the circumstances it was not right for the Industrial Magistrate to make a finding without evidence that a thorough hazard identification and risk assessment process undertaken in 2000 would have identified the requisite inadvertence and a problem of such a scale that a suitable mechanical response as distinct from an administrative or decal response was required. The appellant argued it was an unwarranted assumption to make that if a written hazard identification had been conducted it would have resulted in such an outcome. In our view this contention must be upheld. In our view the Crown ought to have called evidence on this and it was not something which permitted the Industrial Magistrate to draw on his own knowledge. It is certainly not a matter lending itself to common everyday experience.

   [45]The same remarks are relevant to the finding that the handbrake warning device would have dramatically reduced, if not eliminated, the risk before September 2005.  The only evidence before the Court was that the invention of the handbrake warning device occurred in about October 2005.  There was no engineering or other evidence that such a device or system was available prior to that date.  There was no evidence save the view of the Industrial Magistrate that such a device would have been available if the appellant had sought one at an earlier date.  Again with respect the Industrial Magistrate overstretched the use by the Court of its own knowledge in this regard.  Not only is it arguable that Mr Portlock had the requisite expertise on this topic but also there was no evidence from other experts.  The essential fact on this account in our opinion has not been proved beyond reasonable doubt.

   …

   [48]In our opinion there is no doubt that by 11 November 2004 when the Noarlunga Colonnades event occurred the true scale of the risk was at last evident.  It was then that the appellant should have been free from any reasonable belief that an administrative response (the decals or renewed threats of disciplinary action) was effectual.  At that point in time it ought to have realised a mechanical response was an imperative.  The question then to be considered by the Court was the time needed to effect that mechanical response.  That is the time span required to fix the matter.  Given that time sequence it cannot be said in our opinion that the case is proved beyond reasonable doubt.  It must be noted that the time from the Noarlunga Colonnades incident to the fatality is almost the same as the time from the fatality to the time the appellant, as well as the other bus operators, were able to effect the mechanical modification.  Even assuming the ability to invent the handbrake warning device would have been the same in November 2004 as in September 2005, in our conclusion the appeal must be allowed because it cannot be said the case was indeed proved beyond reasonable doubt.

   Footnotes omitted

9. The applicant argues that the nature and gravity of the risk of injury was self-evident, without the need for evidence from a witness.  The applicant argues that the risk of serious injury or death was evident before the incident of 11 November 2004.  The applicant argues that “compelling common sense inferences” led to the conclusion that it was reasonably practicable for the respondent to have fitted an appropriate safety device in 2003, 2004 or 2005.  The applicant submits that even if the true nature of the risk emerged only in November 2004, it was reasonably practicable for the respondent to have developed a safety device before the incident in question in September 2005. 

10. As can be seen from the extract from the reasons of the Full Court, the Full Court considered that the inferences upon which the applicant relied could not safely be drawn as a matter of practical common sense.  Appropriate supporting evidence was called for.  That appears to be the central point made by the Full Court.

11. The applicant accepts that if permission to appeal is granted, this Court will have to embark on a detailed consideration of the evidence led before the Industrial Magistrate. 

12. There is no error of law in the manner in which the Full Court dealt with the legislation in question.

13. As the applicant accepts, ultimately the issue is one of fact.  In particular, there is an issue as to the extent to which common sense inferences can be relied upon rather that evidence from a witness.

14. This is not the kind of case in which or issue on which this Court would normally grant permission to appeal.  If permission is granted the hearing of the appeal will involve this Court in a close review of all factual issues.  That is something that the Full Court of the Industrial Court has already done. 

15. There is no issue of principle that can be identified.  The question of the extent to which common sense is a safe substitute for evidence might appear to be an issue of principle, but in truth it is nothing more than an aspect of the treatment of the evidence that was before the Industrial Magistrate.

16. The applicant asserts that there is another case pending that raises similar issues.  That is not a sufficient reason to grant permission to appeal to re-examine the facts of this case. 

17. The fact that this is an application for permission to appeal against an acquittal by an intermediate court of appeal is also a factor to be taken into account.  It is of limited weight, but nevertheless relevant. 

18. Reviewing the reasons of the Full Court as a whole, the members of this Court are unanimously of the opinion that this is not a suitable case for a grant of permission to appeal.