Metricon Homes Pty Ltd v O'Grady (VWA)
[2018] VSC 351
•26 June 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 01529
| METRICON HOMES PTY LTD | Appellant |
| v | |
| COLLEEN O’GRADY (VICTORIAN WORKCOVER AUTHORITY) | Respondent |
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JUDGE: | Keogh J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 November 2017 |
DATE OF JUDGMENT: | 26 June 2018 |
CASE MAY BE CITED AS: | Metricon Homes Pty Ltd v O’Grady (VWA) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 351 |
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CRIMINAL LAW – Appeal – Whether Magistrate’s finding of guilt was on a different basis to that charged and particularised – Occupational health and safety – Employer’s obligation to provide safe workplace – Tiles being laid on roof of residence before permanent roof supports installed – Whether it was open for Magistrate to conclude employees were at risk of roof collapse – Whether it was reasonably practicable for Metricon to take measures to eliminate or reduce risk – Whether Magistrate failed to give adequate reasons – Occupational Health and Safety Act 2004 ss 20 and 21 – DPP v Vibro-Pile [2016] VSCA 55 (26 March 2016) – Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119 – DPP v Kypri (2011) 33 VR 157 – R v Australian Char [1995] VSC 168 (30 June 1995) – Hunter v TAC & Avalanche [2005] VSCA 1 (10 February 2005).
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | G Livermore | Sparke Helmore Lawyers |
| For the Respondents | D Gurvich QC and A French |
HIS HONOUR:
Introduction
In 2015, Checkpoint Building Surveyors (Checkpoint) issued a building permit to the appellant, Metricon Homes Pty Ltd (Metricon) to build a residence at 50 Scotland Court, Bannockburn (the building site). Building work commenced, and the timber frame of the building was erected. One of the next tasks was laying roof tiles. Metricon engaged Boral to supply and install the tiles. Boral subcontracted preparation of the roof and laying of the tiles to RM Roofing.
Inspection of the frame was required by the building permit. Checkpoint building surveyor, Ante Skoko, attended the building site, inspected the frame and prepared a report (frame inspection report). Mr Skoko did not approve the frame and provided ten reasons, one of which read:
Install PT bracing as shown on engineer’s design and detail.
The PT braces were required to be installed beneath the roof of a large alfresco area of the residence. The PT braces had not been installed because they had not yet been delivered to the building site.
The frame inspection report was received by Metricon on the day of Mr Skoko’s inspection. The following day RM Roofing loaded the roof of the residence with tiles. Laying of the roof tiles was underway when the roof of the alfresco area collapsed.
Metricon was charged by the Victorian WorkCover Authority (VWA) under s 21(1) of the Occupational Health and Safety Act 2004 (Vic) (the Act) for failing to provide and maintain, so far as was reasonably practicable, a working environment that was safe and without risks to health. In March 2017, Magistrate Coghlan found the charge proven, and imposed a fine without conviction. Metricon has appealed Magistrate Coghlan’s orders relying on grounds summarised as follows:
(a) the finding of guilt was made on a different basis to that charged and particularised;
(b) it was not open to Magistrate Coghlan to conclude that employees of Metricon were at risk;
(c) it was not open to Magistrate Coghlan to find that a reasonable employer in the position of Metricon would have had in place the measures particularised in the charge; and
(d) Magistrate Coghlan’s reasons for decision were inadequate.
What happened
The building permit
On 27 May 2015, Checkpoint issued the building permit for construction of the residence to Metricon (the building permit). The building permit specified that it was to be read in conjunction with the endorsed drawings, which included the building plans and engineering design for the residence.
The endorsed drawings specified installation of two PT braces as part of the frame of a large alfresco area of the residence. The PT braces were designed as steel columns to be fixed permanently in place between the concrete floor and the roof of the alfresco area.
In 2015, building inspector Mr Skoko was employed by Checkpoint. He said there were mandatory inspection notifications on the building permit, one of which required inspection of the building frame. He explained that was a stage of construction work requiring inspection before building work could go forward.
Construction of the frame
Work commenced on the building site in June 2015. One of the first tasks undertaken was construction of the frame of the residence. Metricon contracted carpentry business JL Orchard Constructions to build the frame. That work was performed by two carpenters, Joshua Orchard and Shaun Parker.
Work on the frame was largely complete by the week ending Friday 3 July. However, the PT braces had not been delivered to the building site, and therefore had not been installed. Mr Parker said Metricon was responsible for having the PT braces manufactured and delivered to the building site.
Mr Parker said the purpose of the PT braces was to stop sideways movement, but mostly to take the weight of the alfresco roof, ‘the timber and the load of the tiles on top of the timber’. He said temporary props were installed beneath the roof frame to take the weight of the timber beams and trusses, and to measure the final height so the PT braces could be made.
Mr Parker explained the different way in which the PT braces and the temporary props were fixed in place:
PT braces are fixed in top and bottom, and they’re permanently – yeah, so they’re ramset into the concrete and they’ll be – there’s a timber plate that goes across the top, and then the load sits on top of that, then they’ll be screwed up in and then there’s like cyclone tires go around it. The temporary prop is literally just nailed to the side and underneath, and then it just goes down the ground we just put like a 200 mil sole plate just so the actual timber itself’s got something a bit wider to sit on, a bigger footing.
Mr Parker said PT braces were only used in about 20 per cent of houses. In this case they were used because the alfresco area was very large, he said.
Mr Orchard said PT braces are installed to bear the weight of the load bearing walls which are loaded with the weight of the tiles. He said temporary bracing had been put in place beneath the alfresco roof to:
… take our weight so we can construct it. We need to be able to get on the roof and do our works, so that’s to take our weight, no more.
2 July
Boral site supervisor Matthew Thorley attended the building site on 2 July in order to ensure there was room to deliver the roof tiles the following day, and to check the frame was ready for roof tiling work to commence. Mr Thorley said when he inspected the garage he saw that studs had been removed from the frame of a permanent wall. He told the Metricon site supervisor, Adrian Newbegin, who was also on the building site on 2 July, that the garage wall would have to be rectified before roof tiling work commenced. Mr Thorley said when he inspected the alfresco area he looked to see that there were props or posts securely fixed in place holding up the area. He said he remembered seeing six permanent posts in the alfresco area that were secured by dyna bolts at the bottom and nailed off at the top.
Mr Thorley completed a Boral Site Supervisor Pre-Inspection Checklist, which required that he consider a number of questions relating to the readiness of the building site for roof tiling work to commence. He recorded on the pre-inspection checklist the need for rectification work on the garage wall, and ticked ‘yes’ to the checklist question: ‘Are appropriate props used to support any area where permanent roof support structure is incomplete?’
3 July
Mr Thorley said on 3 July he spoke to Mr Newbegin by telephone to confirm that the studs had been replaced in the garage wall. He said Mr Newbegin told him that the roof work would be right to start the following Monday 6 July as planned. Mr Thorley said he then allocated the roof tiling job to Boral subcontractor RM Roofing, and telephoned Reece Miles of that business to give him the address of the building site and to tell him that the roof materials were on site.
Mr Parker said on either Friday 3 July or Monday 6 July he was on the building site and was asked by Mr Newbegin whether the frame was okay to install battens on the roof, and he said it was.
6 July
Mr Miles said that he attended the building site with four of his tilers on the morning of Monday 6 July. He said when he first arrived he completed a Boral Risk Assessment Checklist. In relation to the need to complete the checklist Mr Miles said:
So at every job we are required to look around, make sure scaffold and handrail is around the roof. Creeper rafters and props just to make sure it’s secure.
Mr Miles circled ‘yes’ to the checklist question: ‘Are appropriate props used to support any areas where permanent roof support structure is incomplete?’ When asked what his answer to the question was based on he said:
Just my observation and what I’ve been told by Matt Thorley that the job is ready to start.
It was necessary to sark and batten the roof in preparation for laying the roof tiles. Mr Thorley explained sarking is insulated industrial strength paper which is laid over the roof trusses. He said the wooden battens are then placed running along the trusses on top of the sarking, and the tiles are laid on the battens. Mr Miles said it took his team all of 6 July to sark and batten the roof.
Mr Newbegin, Metricon construction manager Ricky Bilston, and two other Metricon site managers were on the building site on 6 July to complete a frame inspection. Each was armed with a can of blue paint to mark items that needed correcting by the carpenters. Mr Miles’ crew was on the roof sarking and battening while the Metricon inspection took place. Mr Bilston said he saw nothing during the frame inspection which led him to believe there was any risk to people working on the roof with the frame in the condition it was in.
Mr Skoko also attended the building site on 6 July to complete the frame inspection. He said the frame inspection was done based on the endorsed drawings referred to in the building permit. Mr Skoko said the site supervisor Mr Newbegin accompanied him while he completed the inspection. He identified problems with the frame and made notes which were included in the frame inspection report. Mr Skoko did not approve the frame and recorded that re-inspection was required. He listed ten reasons in the frame inspection report why the frame was not approved, six of which related to the alfresco area. Mr Skoko said he transmitted the frame inspection report to Checkpoint at 12.54 pm. Later that day Checkpoint sent the report to Metricon.
Mr Skoko said a PT brace column carries weight and stops the building trying to move ‘left and right’. He said the PT braces transfer the weight from the roof down to the footings of the building. He said the weight he was referring to was ‘[things] like roof tiles or roof sheets, plaster, heating, cooling systems, any weight that’s loaded onto the trusses needs to be distributed back to the ground’. He described PT braces as ‘fundamental in stopping the building from wanting to move around in the stress’.
Mr Skoko said he was not concerned about the temporary props because there were multiple props which were in accordance with the Australian standards to hold the roof, which was not being loaded at the time.
At 6.56 pm on 6 July Mr Newbegin attached the frame inspection report to an email he sent to Mr Orchard, which read:
Hi mate, please see failed building surveyor inspection report, all items must be 100% complete before I can book the reinspection and the payment for the frame to be able to go through.
Any dramas don’t hesitate to call. Cheers
Mr Bilston said he was copied into the email. Both Mr Newbegin and Mr Bilston said they read and considered the frame inspection report.
Mr Orchard said he received an email from Mr Newbegin on 6 July telling him the frame had not passed inspection. He said:
The frame’s basically the most important thing in a construction. If that isn’t passed then it must be fixed and up to standards so work can go on.
7 July
Mr Miles and his team of roof tilers returned to the building site on 7 July, arriving just after 7.00 am. He said they then started laying tiles on the roof. He said no-one else was on site, until shortly after 2.20 pm when Mr Newbegin arrived. Mr Miles said tiles were loaded onto the alfresco roof, and were being laid by one of the tilers, Paul Altair, when the roof collapsed. He said Mr Altair fell with the roof to the ground and was injured.
Mr Newbegin and Mr Bilston
Mr Newbegin said he arrived at the building site at approximately 2.00 pm on 7 July. He said he was there to do his daily inspection and see how things were going. Mr Newbegin said Mr Miles’ team were loading the roof with tiles, and he was in his car while this was happening. He got out of the car because the tilers yelled there had been an incident.
Mr Bilston said he would be on the building site from time to time:
… to talk to the trade and see what’s happening, make sure people are compliant, carrying out their works accordingly.
He said it was Metricon’s procedure that nobody works underneath the frame while the tilers are on the roof laying tiles, ‘because they throw excess tiles off the roof’. Mr Bilston said if he had been on site on 7 July there was no possibility of him being underneath the tilers working on the roof. He agreed that when tilers were not on the roof working it was okay for people to walk underneath the roof. He agreed that he and Mr Newbegin may be on site from time to time during the course of tiling when tilers were not on the roof laying tiles. He said while tiling work was happening, he would not walk under the roof, but he would definitely do so if there were tilers on the roof. Mr Newbegin gave similar evidence.
WorkSafe safety alert
In February 2015, WorkSafe issued a safety alert headed ‘Preventing roof collapse in housing’. The safety alert relevantly read:
Background
Builders and truss erectors use temporary roof supports (eg pine studs) when permanent roof support structures (eg columns, posts or walls) for porticos, facades, verandas, garage entrances and other areas have not yet been installed.
Temporarily supporting a house’s roof structure during the construction can put the roof at risk of collapse, if the temporary supports used are structurally inadequate for the loads exerted on them.
While temporary supports may be structurally adequate for the bare roof skeleton, it may be insufficient when the roof is exposed to additional loads, such as:
▪the weight of roofing materials, including point loads
▪roof workers installing roofing
▪exposure to lateral wind loads, or
▪a combination of the above.
A roof held up by structurally inadequate supports puts all workers onsite, and potentially the public, at risk should the supports fail and the roof collapses.
Control measures
The builder as the person with management or control of the workplace must ensure, the workplace and the means of entering and leaving it are safe and without risks to health, so far as is reasonably practicable.
Before allowing any work on, under or near a temporary supported roof structure, ensure the temporary supports are:
▪of adequate strength, stiffness and stability
▪can hold the weight of workers and roof materials, including any point loading
▪braced to prevent bending or other lateral forces
▪secured both top and bottom to prevent dislodgement.
▪protected against impacts and damage
For example when a garage or similar type area with large wall openings is to be roofed prior to completion of areas structural elements (eg brickwork, lintels) sufficient braces, props, temporary stud walls or a combination of these should be used to support the roof.
Any work on, under or near a temporary supported roof structure has significant risks and all workers onsite must be provided with site specific induction training which includes information and instruction on the hazards and the controls in place to manage the risk of roof collapse, such as the :
§ Location of temporary supports and bracing
§ Process to follow to safely get supports or bracing altered
§ Identification and reporting of support damage and potential failures.
The hip rafters
Mr Bilston said hip rafters were important structural elements which ran from the central point of the alfresco area to each corner. He said in this case each hip rafter was designed in two pieces to be joined by metal nail plates on each side. Mr Bilston said he examined photographs taken after the roof collapse which showed that one of the hip rafters was not joined by the two nail plates as required by the truss plan.
The Metricon system and industry practice
After the collapse of the alfresco roof, Metricon changed its system for responding to building inspection reports. Mr Bilston and Mr Newbegin said after the incident, work installing roof cover was not to commence until the building frame was approved by the building surveyor.
Mr Bilston said that, both before and after the roof collapse, it was common industry practice for roofing work to continue notwithstanding a failed frame inspection report. He said it was perfectly safe for that to occur provided appropriate temporary bracing was in place. Mr Thorley said it was not part of any other builders’ system to tell Boral that the frame had been approved by a building inspector.
Legislation
Occupational Health and Safety Act 2004
The objects of the Act are set out in s 2, and include:
(a)to secure the health, safety and welfare of employees and other persons at work; and
(b)to eliminate, at the source, risks to the health, safety or welfare of employees and other persons at work; …
having regard to the principles of health and safety protection set out in section 4.
The principles of health and safety protection set out in s 4 include:
(1)The importance of health and safety requires that employees, other persons at work and members of the public be given the highest level of protection against risks to their health and safety that is reasonably practicable in the circumstances.
(2)Persons who control or manage matters that give rise or may give rise to risks to health or safety are responsible for eliminating or reducing those risks so far as is reasonably practicable.
Part 3 of the Act deals with general duties relating to health and safety. Duties of employers to employees are governed by s 21, which relevantly reads:
(1)An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.
Penalty: 1800 penalty units for a natural person;
9000 penalty units for a body corporate.
(2)Without limiting subsection (1), an employer contravenes that subsection if the employer fails to do any of the following—
(a)provide or maintain plant or systems of work that are, so far as is reasonably practicable, safe and without risks to health;
The concept of ensuring health and safety is further explained in s 20 of the Act, which reads:
(1)To avoid doubt, a duty imposed on a person by this Part or the regulations to ensure, so far as is reasonably practicable, health and safety requires the person—
(a)to eliminate risks to health and safety so far as is reasonably practicable; and
(b)if it is not reasonably practicable to eliminate risks to health and safety, to reduce those risks so far as is reasonably practicable.
(2)To avoid doubt, for the purposes of this Part and the regulations, regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety—
(a)the likelihood of the hazard or risk concerned eventuating;
(b)the degree of harm that would result if the hazard or risk eventuated;
(c)what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;
(d)the availability and suitability of ways to eliminate or reduce the hazard or risk;
(e)the cost of eliminating or reducing the hazard or risk.
Criminal Procedure Act 2009
A criminal proceeding in the Magistrates’ Court is commenced by filing a charge sheet.[1] A charge sheet must be in writing and comply with sch 1 of the Criminal Procedure Act 2009, which relevantly reads:
[1]Criminal Procedure Act 2009 s 6.
1 Statement of offence
A charge must—
(a)state the offence that the accused is alleged to have committed; and
(b)contain the particulars, in accordance with clause 2, that are necessary to give reasonable information as to the nature of the charge.
2 Statement of particulars
(1)Subject to subclause (2), particulars of the offence charged must be set out in ordinary language and the use of technical terms is not necessary.
(2)If a rule of law or a statute limits the particulars that are required to be given in a charge, nothing in this clause requires any more particulars than those required.
Charge and particulars
The charge and particulars against Metricon read:
Charge [1] – On or about 7 July 2015, at Bannockburn in the State of Victoria pursuant to section 21(1) of the Occupational Health and Safety Act 2004 you were guilty of an offence in that as an employer you failed, so far as was reasonably practicable, to provide for your employees a working environment that was safe and without risks to health when in contravention of section 21(2)(a) you failed to provide and maintain systems of work that were, so far as was reasonably practicable, safe and without risks to health.
Particulars:
1.The Accused, Metricon Homes Pty. Ltd. (ACN 005 108 752), is and was at all material times a body corporate.
2.The acts and omissions of the Accused constituting the offence took place within the state of Victoria at Bannockburn.
3.The Accused, is and was at all material times an employer within the meaning of section 5 of the Occupational Health and Safety Act 2004 (‘the Act’).
4.At all material times the Accused employed Adrian Newbegin and Ricky Laurie Bilston.
5.On 7 July 2015, roof tiling work was being performed by RM Roofing Pty Ltd, engaged by the Accused, at a residential dwelling located at 50 Scotland Court, Bannockburn (‘the workplace’).
6.A building inspection was conducted at the workplace on 6 July 2015 by Checkpoint Building Surveyors.
7.The frame was not approved by the building inspector and ten issues were identified in the inspection report.
8.One of the issues identified that PT braces were required to be installed in the alfresco area to provide support to the roof structure, as per the engineering design.
9.The house frame could not be complete as two PT braces had not been ordered or delivered to the workplace.
10.Temporary supports were installed where the PT braces were to be installed in the alfresco area however temporary braces are not designed to support weight.
11.The inspection report indicated that a re-inspection was required once the frame was complete. The frame was not approved by Checkpoint Building Surveyors.
12.The Accused failed to ensure that the frame was inspected and approved by a building inspector before allowing works to commence on the roof.
13.Employees of the Accused, including but not limited to Adrian Newbegin and Ricky Laurie Bilston, were placed at risk of the roof collapsing at the workplace causing serious injury or death.
14.On 7 July 2015, the risk eventuated when a section of the roof collapsed at the workplace.
15.It was reasonably practicable for the Accused to control the risk to health and safety by:
a.formally communicating the outcome of the building inspection report to Site Managers, Construction Managers and relevant contractors; and
b.not allowing works to commence works on the roof until the frame had been approved by a building inspector.
Magistrates’ Court reasons for decision
Magistrate Coghlan identified four elements of an offence under s 21(1) of the Act:
(a) Metricon was an employer;
(b) there was a risk in the working environment to employee health and safety;
(c) Metricon failed to provide and maintain a system of work that would have eliminated or reduced the risk; and
(d) it was reasonably practicable for Metricon to have provided and maintained that system of work.
In relation to the first element, Magistrate Coghlan concluded:
I am satisfied on that material that the accused Metricon Homes Pty Ltd was at the relevant time the employer of Ricky Bilston and Adrian Newbegin.
Metricon submitted that Mr Bilston’s evidence that photographs taken after the roof collapse showed a hip rafter in the alfresco area which was not joined by two nail plates as required by the truss plan, was evidence that was the likely cause of the roof collapse. Magistrate Coghlan rejected that submission.
After summarising the evidence in relation to risk, Magistrate Coghlan set out the following passage from DPP v Vibro-Pile:
… proof of a breach of the OHSA does not require proof that the breach caused actual harm to any person. The offences created by the Act … are risk based, not outcome based offences. The breach consists in the employer’s failure to eliminate or reduce a risk to employee safety. The occurrence of death or injury is of evidentiary significance only. It is not an element of the offence. Crucially, the prosecution does not need to prove that the employer’s breach caused the accident or that taking of particular safety measures would have changed the course of events on the day in question. Put another way, the prosecution does not need to establish that the defendant employer should have anticipated the risk of events unfolding precisely as they did on the day of the fatal accident.’[2]
Magistrate Coghlan then expressed his conclusion as to risk:
While I do not believe that I have to make any finding about what may have caused the roof to collapse, on the evidence available the only reasonable inference is that the absence of the PT braces was likely to be a contributing cause and clearly increased the risk of collapse of the larger than usual alfresco roof area.
The evidence in relation to the function and purpose of the PT braces was clear and uncontradicted. Temporary braces were initially required to support the roof beams and trusses while the PT braces were being manufactured. The measurements for the PT braces could not occur until after the temporary props were in place.
I accordingly give little weight to the suggestion that the collapse of the alfresco roof area was due to some failure in relation to the hip rafters.
… I also find that Bilston and Newbegin were also at risk on that date as the evidence substantiates that that [sic] they were either working on or would be likely to be working on the site on that day. It does not follow that Bilston and Newbegin were not at risk merely by virtue of the fact that they were not under the roof, or likely to be under the roof at the precise moment of the collapse.
[2][2016] VSCA 55 (26 March 2016) (‘Vibro-Pile’).
Next, Magistrate Coghlan addressed the element of eliminating or reducing the risk. Referring to Metricon’s response to the frame inspection report, Magistrate Coghlan said:
[Mr Skoko’s] report detailing the works required was sent to both Newbegin and Bilston on 6 July. Neither Newbegin or Bilston had any discussions with each other about the report or about whether it was appropriate for further works to be carried out before the further work on the frame was completed. Neither Newb[e]gin or Bilston had any discussion with Reece Miles, or any of the employees of RM roofing, Mr Thorley or any other person from Boral, between the time when the Checkpoint Building report was received and when the incident occurred.
…
It does not appear that either of Newbegin or Bilston turned their mind to whether the problems with the frame would cause any issues in relation to the safety of persons working at the worksite. They said that they reviewed the report and an email was sent to JL Orchard, but no other action was taken.
Magistrate Coghlan dealt with Metricon’s submission that the case against it did not match the particulars of the charge:
The accused in its submissions refers to paragraph 15 of the particulars of the charge. They submit that under 15(b) the Prosecutor is obliged to prove that no works at all should have been carried out on the roof. They contend that there has been a ‘slide’ in the prosecution case.
If as a result of the way the charge and particulars are alleged, the Prosecution must prove that no works at all could occur on the roof area, then I would agree with the submission. However I do not take [the] view. There is a number of steps in the roof tile process. There is evidence, from Skoko and Parker to support that is [sic] was considered safe to install the sarking and battens only, not loading the roof with roof tiles.
In relation to the third element, his Honour concluded:
I find that if the accused had communicated the report to Boral and RM Roofing, and/or stopped work on the work site from continuing beyon[d] sarking and the batten stage, that would have eliminated or reduced the risk of injury.
Finally, Magistrate Coghlan considered whether it was reasonably practicable for Metricon to have adopted that system of work. His Honour referred to the considerations outlined in s 20(2)(a)–(e) of the Act and set out in a passage from the decision of Holmes v RE Spence & Co Pty Ltd.[3] His Honour noted that while Metricon had changed its system following the roof collapse, Mr Thorley’s evidence was that other builders had not made similar changes. In relation to the reasonably practicable element his Honour concluded:
The issue however is what an employer acting reasonably, placed in the same circumstances as Metricon would have done.
I am satisfied that there was a likelihood of a risk arising once the roof was being loaded with roof tiles or other significant weight. So much was apparent from a number of sources including the Worksafe Alert, the Boral SWMS, the evidence of Skoko and the evidence of Parker. I believe that Newbegin and Bilston should have had a more active response to receipt of the frame inspection report.
I accept that in the event that the roof collapsed, there was clearly a risk of serious injury or death. Again this [is] a matter referred to in the Safety Alert and ought to have been appreciated by those in the residential building construction business.
The [frame] inspection report dated 6 July showed that the frame had not been approved. In my view that should have alerted Newbegin and Bilston to at the very least discuss this issue with Thorley or Miles and consider whether the temporary props were sufficient to proceed with the loading and laying of the roof tiles. As they had the report, and were aware of the Safety Alert and the Boral SWMS, Metricon should have for[e]seen that there was a risk if the structure was not strong enough to carry the additional weight which was to be loaded onto the roof the following day.
I am further satisfied that there were ways available to reduce or eliminate the risk. The steps taken by Metricon in response to the Worksafe improvement notice, which included communication of the inspectors report, the decision to do away with temporary supports and the decision not to load the roof until the frame inspection was approved, were taken and conveyed to Worksafe soon after the incident occurred. Those steps were taken with the benefit of hindsight, however the incident highlighted the failure of Bilston and Newbegin to give any consideration to the issue of risk when they received and reviewed the report on the afternoon prior to when the roof was to be loaded with tiles.
I do not think that the cost of taking such steps would be significant in relation to the total costs of constructing a residential building, although it may have caused some delay and therefore some cost in the completion of construction.
[3](1992) 5 VIR 119 (Holmes).
I will now deal in turn with Metricon’s grounds for appeal, which I summarised above.
Was the finding of guilt made on a different basis to that charged and particularised? (Ground 1)
Metricon
Metricon submitted, first, that the case against it set out in the charge and particulars was unambiguous; that it failed to attend to a risk to health and safety that arose when work commenced on the roof of the residence. Second, the charge was misconceived, and was disproved by the evidence. Work did commence on the roof and was safely carried out over a period of days by carpenters and roof tilers who completed roof trusses and installed sarking and battens. All relevant witnesses agreed it was safe to commence work on the roof, and it was not disputed that it was common and accepted practice to do so with temporary bracing in place. Third, Metricon was found guilty in a demonstrably different case to that charged, involving a risk said to arise when the roof of the dwelling was loaded with the weight of roof tiles. In filed submissions to Magistrate Coghlan the VWA abandoned the pleaded case, and, without any attempt to amend the particulars, pursued a new case, relying on a risk said to arise when ‘roof tiling works were commenced’. Magistrate Coghlan did not grapple with Metricon’s submissions on this point and adopted the VWA’s ‘slide’ into a new case.
VWA
VWA argued Metricon’s submission, and this ground, relied on the reading of particular 12 in a vacuum divorced from context. VWA submitted the particulars, read as a whole, were sufficient to make clear the case that Metricon breached its statutory duty to provide and maintain a safe working environment by failing to take reasonably practicable measures in response to the failed frame inspection report which indicated, among other things, that PT braces needed to be installed. VWA submitted particular 5 framed the case on the events of 7 July, and on work carried out on the roof that day. On 7 July the roof was loaded with tiles and tiling commenced; that is the ‘works’ described in particular 12.
Analysis
Metricon relied on the judgment of Nettle JA in R v ACR Roofing Pty Ltd,[4] in which his Honour said:
It is the function of the Crown to frame the presentment and to that extent the juridical basis of the liability which is alleged. The Crown must identify the offence which is alleged and provide the accused with the substance of the charge which he is called upon to meet and supply particulars necessary to enable him to prepare his defence. Thus “[w]hen a person is charged on particulars giving one set of facts, he really cannot be convicted on proof of a different set of facts — at least not unless he has had a fair opportunity of defending himself on those different facts”.
VWA relied on Nettle JA’s remarks in Director of Public Prosecutions v Kypri[5] as to the need to consider the words of the charge in context, and to comments to similar effect made by his Honour in ACR.[6] In Kypri, Nettle JA said:
A charge is to be interpreted in the way in which a reasonable defendant would understand it, giving reasonable consideration to the words of the charge in their context. If, therefore, the contents of the charge and the summons are sufficient when read as a whole to bring home to a reasonable defendant the essential elements of the offence alleged, the charge will not be invalid.[7]
[4](2004) 11 VR 187 [31] (‘ACR’) (citations omitted).
[5](2011) 33 VR 157 (‘Kypri’).
[6](2004) 11 VR 187 [63]–[64] (citations omitted).
[7]Kypri (2011) 33 VR 157 [16].
Particular 12 alleged failure to ensure the frame was approved before allowing works to commence on the roof. That particular must be read and understood in the context of the whole of the charge and particulars. To understand what was being alleged in relation to the frame it is necessary to consider particulars 6 to 11.
Particular 6 alleges a building inspection was conducted on 6 July. The results of the inspection are particularised in paragraphs 7, 8 and 11; that the frame was not approved because PT braces, which were required to provide support to the roof structure in the alfresco area, had not been installed, and reinspection was required. Relevantly, particular 10 alleges temporary supports installed in place of the PT braces were not designed to carry weight. A reasonable defendant would understand these particulars as alleging that the PT braces were a required weight-bearing element of the alfresco frame.
There was work performed on the roof before 7 July, including work by the carpenters on the timber frame and sarking and battening in preparation for the roof tiling. However, the reference to works in particular 12 must be read in the context of particular 5, which describes the work as roof tiling work performed by RM Roofing on 7 July. A reasonable defendant would understand the particulars as directing attention to the work described in particular 5.
Particulars 13 and 14 identify the risk as the roof collapsing and causing serious injury or death to employees. A reasonable defendant would understand the particulars as alleging that the risk arose from the roof tiling work commencing on 7 July in circumstances where a weight-bearing element of the frame in the alfresco area had not been installed. The act or omission said to constitute a contravention of s 21(1) of the Act was the failure to obtain frame approval before allowing the roof tiling work to commence on 7 July. It is clear that failure relates to the one reason particularised for the frame not being approved, that the PT braces had not been installed. The reasonably practicable steps to control a risk are clearly identified in particular 15. Because Magistrate Coghlan found the charge proven on the case alleged in the charge and particulars, ground 1 fails.
Was it open to Magistrate Coghlan to conclude that employees of Metricon were at risk? (Grounds 2 – 4)
Concession on appeal
Magistrate Coghlan found that roof tiler, Mr Altair, was an employee of an independent contractor to Metricon, and that s 21(3) of the Act applied with the result that Metricon owed the s 21(1) duty to Mr Altair. His Honour found Mr Altair was at risk at the building site on 7 July, and that Metricon breached the duty it owed to him.
At first instance and on appeal Metricon submitted that reliance on s 21(3) was never part of the charge and particulars and was not the case Metricon was required to answer. On appeal VWA conceded that the charge and particulars did not allege the statutory duty was owed to Mr Altair by virtue of s 21(3) of the Act and were therefore insufficient in law with respect to Mr Altair. VWA did not resist Metricon’s submission that the charge cannot be found proven in relation to Mr Altair.
Metricon
Magistrate Coghlan found that Mr Bilston and Mr Newbegin were also at risk of the roof collapsing. No issue was taken on appeal that Mr Bilston and Mr Newbegin were employees of Metricon.
Metricon submitted that Mr Bilston and Mr Newbegin would only be at risk if they were on the roof engaged in the task of laying the roof tiles, or under the roof when that task was being carried out, and the roof collapsed. Metricon relied on the following evidence: Mr Bilston was not on the building site on 7 July; Mr Newbegin arrived at the site shortly before 2.00 pm and was still in the car when the roof collapsed; the work of Mr Bilston and Mr Newbegin did not involve them getting on the roof; and the Metricon system, which both Mr Bilston and Mr Newbegin said they abided by, mandated that no-one would be under the roof frame when the tilers were tiling the roof. Metricon summarised its submission as:
(a) the evidence was incapable of proving beyond reasonable doubt that the health and safety of Mr Newbegin and/or Mr Bilston was at risk by reason of the roof collapsing on 7 July when the tilers were tiling the roof; and
(b) the Magistrate’s finding that they were relevantly at risk simply because they were in a category of employees who might have been present at the construction site cannot, as a matter of law, provide the basis for a finding that they were relevantly at risk.
VWA
VWA referred to the principle enunciated in the following passage from Vibro-Pile:
Axiomatically, proof of a breach of the OHSA does not require proof that the breach caused actual harm to any person.[8] The offences created by the Act (and by its 1985 predecessor)[9] are risk-based, not outcome-based, offences. The breach consists in the employer’s failure to eliminate or reduce a risk to employee safety. The occurrence of death or injury is of evidentiary significance only. It is not an element of the offence.[10]
VWA submitted the fact that tiling works were being carried out on a roof with an inadequately supported frame created a risk to employees’ safety.
[8]Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, 553 [13] (‘Kirk’).
[9]Occupational Health and Safety Act 1985 (‘the 1985 Act’).
[10][2016] VSCA 55 [3] (24 March 2016).
In relation to the risk to Mr Newbegin and Mr Bilston, VWA relied on the following evidence: as site manager Mr Newbegin attended the site regularly; on 7 July Mr Newbegin arrived at the site moments before the roof collapse; as construction manager Mr Bilston said he would attend the building site to talk to different tradespeople and to see what was happening onsite; both Mr Newbegin and Mr Bilston agreed they could have been under the roof at a time during the course of tiling when the tilers were not up on the roof; photographs of the collapsed roof show frame materials on the ground within and outside the perimeter of the alfresco area.
VWA submitted, relying on the decision in Diemould Tooling Services v Oaten,[11] Mr Newbegin and Mr Bilston represented a category of employees whose health and safety were at risk, namely employees who could have been working at the construction site at the time the roof was being tiled.
[11][2008] SASC 197 (17 July 2008).
Analysis
The essential difference between the parties on this ground was that Metricon anchored the analysis of risk to the events as they unfolded on 7 July, whereas VWA argued that risk was to be assessed looking prospectively from receipt by Metricon of the failed frame inspection report on the evening of 6 July and the commencement of roof tiling work early the next morning, and submitted that analysis of risk was not limited by the roof collapse. Metricon’s position was expressed in oral submissions as follows:
MR LIVERMORE: What has got to be looked at is, on or about 7 July, having regard to what happened on 7 July, were these two named employees exposed to risk, and we say it’s just fanciful to say that they were. Bi[l]ston is not even there. How can he be exposed to the risk on or about 7 July?
The risk, on analysis of the evidence, is only really in play for a relatively short time before it materialises.
HIS HONOUR: All right, so your submission is that the risk is limited by the eventuation, the fact that the roof collapsed?
MR LIVERMORE: By the case brought against us which is that the risk materialised on this day and collapsed. Plainly there’s no risk after that.
…
HIS HONOUR: Alta[ir]’s out of the picture and so we’re limited to Bi[l]ston and Newb[e]gin and you say it is truly limited to Bi[l]ston and Newb[e]gin, not as part of a category but as individuals and you say that the evidence is that Bi[l]ston wasn’t even at the premises and Newb[e]gin hadn’t got of his car and that the period of risk is the period, even on the prosecution's case, from the time at which the tiles were loaded onto the alfresco roof area to the point of collapse?
MR LIVERMORE: Precisely, Your Honour.
Metricon relied on the decision in Inspector Christensen v Abigroup Contractors Pty Limited & Anor[12] in support of its position.
[12](2013) 238 IR 360 (Abigroup).
VWA’s position was expressed as follows:
MR GURVICH: Now, Your Honour will have observed from the photographs that the risk was the roof collapsing down and out in that general area, the working environment, as it is sometimes framed.
Contrary, or distinguishable from Abigroup, was that this risk could have eventuated at any time, any time. It just happened to be that those two men, Bi[l]ston and Newb[e]gin were not under it at the moment of collapse.
…
HIS HONOUR: Yes, so you say looked at prospectively, at the time the relevant events were occurring, that is, reception of the report of Mr Skoko.
MR GURVICH: Yes.
HIS HONOUR: And secondly, commencement of the roof tiling work on 7 July the risk extends- - -
MR GURVICH: Beyond.
HIS HONOUR: Beyond the period, at least for some days, and - - -
MR GURVICH: Until the PT brace - - -
HIS HONOUR: Yes.
MR GURVICH: Until the PT braces were installed.
…
HIS HONOUR: So as long as the al fresco area was unsupported by the PT braces, once laden with tiles, the risk was there.
MR GURVICH: That’s so, or put another way, for as long as the failed inspection report was extant.
The submissions of VWA on this ground must be accepted. It is necessary to consider risk prospectively from the point of time of the act or omission of the employer alleged to constitute contravention of s 21(1). In this case the act or omission alleged against Metricon was the failure to obtain an approved frame inspection before allowing roof tiling work to commence. That point was reached early on the morning of 7 July. The risk of the roof collapse arose from loading the roof with the weight of tiles when the weight-bearing PT braces had not been installed. There was no evidence the risk of collapse was limited to the times when tilers were on the roof laying tiles. Mr Bilston and Mr Newbegin attended the building site regularly in the course of their work for Metricon. The possibility existed that, other than at times when tilers were on the roof performing tiling, they might walk under or in proximity to the alfresco roof. As a consequence, Mr Bilston and Mr Newbegin were placed at risk of serious injury if the roof collapsed because it was loaded with the weight of tiles when it was inadequately supported.
Each case in which breach of s 21 of the Act is alleged must be decided on its own facts. Consideration of the facts in Abigroup[13] shows why a different conclusion as to risk was reached in that case. Abigroup involved use of a crane to move heavy rail track panels into position. Attempts to position one section of panel were unsuccessful because the track was misaligned. While the panel was still suspended from the crane a decision was made to unclip a number of rails so they could be shunted forward into position. After a number of clips were removed, sections of rail lines suddenly sprang free causing the death of one worker and injury to others. The charge did not allege risk to the workers involved in unclipping work, who were employed by a subcontractor, but to employees of the defendant who were on the work site but not in the vicinity of the load while it was being unclipped. The risk which was particularised could only exist during the brief period the clips were being removed. Because the Abigroup employees were not in the vicinity of the panel during that limited period, it was determined they were not at risk.
[13]Ibid.
By contrast, here the risk of roof collapse existed from the time when work loading tiles onto the roof of the residence commenced until either the PT braces were installed or the risk eventuated. Both events were uncertain. There was no information as to when the PT braces were to be delivered and installed. The timing of the roof collapse could not have been predicted. Viewed from the morning of 7 July when work loading tiles onto the roof of the residence commenced, the period of time where there was risk of roof collapse was open-ended. Mr Newbegin attended the building site daily to undertake inspections. Mr Bilston attended regularly. The possibility that they would be on the building site underneath or in the proximity to the alfresco roof after it was loaded with tiles put each of them at risk if serious injury or death if the roof were to collapse.
It was open to Magistrate Coghlan to conclude Mr Newbegin and Mr Bilston had been placed at risk. Ground 4 fails.
Was it open to conclude that it was reasonably practicable for Metricon to take the measures particularised in the charge to eliminate or reduce the risk? (Grounds 5 – 11)
Metricon
Metricon submitted that, either expressly or by implication, Magistrate Coghlan made the following findings:
a) it was common practice in the building industry for work to commence on the roof (including tiling) whilst the frame had in place temporary bracing and had not been finally approved by the building inspector;
b) no industry participant before the incident on 7 July 2015 had in place the measures alleged at paragraphs 12 and 15 of the particulars against the Appellant;
c) no industry participant had in place after the incident the measures alleged against the Appellant and implemented by the Appellant after the incident;
d) WorkSafe Victoria’s guidance material both before and after the incident specifically countenanced work commencing on the roof whilst temporary bracing was in place and did not suggest or require the implementation of the measures alleged against the Appellant ;
e) the Appellant had in place systems of inspection to ensure that the roof was safe to work on; and
f) the Building Inspector did not exercise his power under the Building Act to direct or even suggest that work should not commence on the roof until the frame was approved. In fact the Inspector gave evidence that the roof was safe to work on, was supported by temporary bracing that complied with Australian Standards and the tilers were on the roof working when he carried out his inspection,
Second, Metricon submitted, in light of those findings, it was not open to Magistrate Coghlan to conclude that a reasonable employer in the position of Metricon would have had in place the measures set out in particulars 12 and 15.
Third, had Magistrate Coghlan given the weight that he was bound to give to the evidence as to industry practice and the considerations in s 20(2)(c) and (d) of the Act, he could not have found the charge proven. Metricon submitted that compliance with industry practice is powerful evidence that the statutory duty had not been breached and, in a criminal prosecution, was arguably decisive.[14]
[14]Dovuro Pty Ltd v Wilkins & Ors [2003] 215 CLR 317, 329 [34] (McHugh J) (‘Dovuro’).
Fourth, the Magistrate’s conclusion that because Metricon implemented various measures after the incident, it was reasonably practicable to implement them before the incident, involved the impermissible application of hindsight reasoning.[15]
[15]Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119, 123–124 (‘Holmes’); R v Australian Char [1995] VSC 168 [49] (30 June 1995) (‘Australian Char’); Vairy v Wyalong Shire Council (2005) 223 CLR 422 [128]–[129].
Fifth, the finding of guilt was based on a conclusion by Magistrate Coghlan that Mr Bilston and Mr Newbegin failed to give any consideration to the frame inspection report when it was provided to them. It was submitted that conclusion was not open on the evidence. Sixth, it was submitted there was no evidence upon which Magistrate Coghlan could find the absence of the PT braces (and the use of temporary braces to support the roof) increased the risk of the roof collapsing and were a cause of the roof collapse. In reaching a conclusion that the absent PT braces were a cause of the roof collapse, Magistrate Coghlan wrongly rejected the uncontradicted evidence of Mr Bilston that the failure to join the hip rafters was a potential cause of the collapse.
VWA
VWA submitted first that Magistrate Coghlan did not make any of the six findings set out above in paragraph 67. Second, there was other compelling evidence regarding industry practice upon which his Honour could rely:
(a)Inspection of the framework is a “mandatory inspection notification stage”, pursuant to the Building Permit. Skoko said this meant that certain stages of work, “need to be seen prior to building work going forward”. Parker and Joshua Orchard gave similar evidence.
(b)The task of the Building Inspector in conducting an inspection of the frame is to ensure the frame has been constructed in accordance with the endorsed drawings and engineered design documentation.
(c)The alfresco area that was being built was larger than usual. Parker said that PT braces were used in around 20% of domestic dwellings and that PT braces were used in this frame because of the dimensions of the alfresco area.
(d)The function of PT braces was not challenged by the Appellant.
(e)The Appellant received a frame inspection report that showed the frame was:
•“not approved”;
•ten items required attention, which included the installation of PT braces; and
•re inspection was required.
(f)Despite receiving the failed frame inspection report and reviewing its contents, the Appellant did not advise Boral or take any action to stop the roofers from proceeding with tiling.
(g)Tellingly, Bilston said that prior to the incident, in relation to other projects, “if there was something (in a failed frame inspection report) deemed completely unsatisfactory then the roof wouldn’t be loaded”.
Third, in terms of industry practice, Magistrate Coghlan was entitled to take the view that the measures Metricon should have taken, in the knowledge of a failed frame inspection report which indicated PT braces needed to be installed, were obvious and involved a ‘common sense assessment’.[16] Fourth, the circumstances of this case ‘constitute a persuasive reason for concluding that the common practice of the field of activity fell short of what reasonable care required’.[17]
[16]Kirk (2010) 239 CLR 531 [18].
[17]Dovuro [2003] 215 CLR 317.
Fifth, on the following evidence it was open to Magistrate Coghlan to find the absence of PT bracing, and the temporary braces, created a risk which caused the collapse:
(a) On 7 July the frame and roof of the alfresco area collapsed while the roof was being tiled.
(b) Temporary supports had been installed in the alfresco area to allow measurements to be taken for the PT braces. The temporary supports were not designed to support a load such as roof tiles.
(c) The function of the PT braces was to support the load placed on top of the alfresco area and provide lateral stability.
Relying on Vibro-Pile,[18] VWA submitted evidence as to the cause of the accident can be significant to demonstrate the existence of the risk and likelihood of the risk eventuating.[19]
[18][2016] VSCA 55 (26 March 2016).
[19]Ibid [91].
Sixth, Magistrate Coghlan was entitled to reject Mr Bilston’s evidence that an absence of nail plates joining the hip rafter was the cause of the roof collapse. It was submitted, in any event, that evidence did not detract from the evidence regarding the risk posed by the temporary supports.
Seventh, whilst Magistrate Coghlan did not accurately characterise the evidence of Mr Newbegin and Mr Bilston in relation to their treatment of the failed frame inspection report, the mischaracterisation was of no consequence, and does not vitiate the conclusion that Metricon breached its duty to provide and maintain a safe working environment that would have eliminated or reduced the risk of the roof collapsing by failing to take appropriate action with respect to the failed frame inspection report. Further, even if his Honour’s mischaracterisation amounts to an error of law, the appeal should be dismissed because it can clearly be said that error did not affect the result.
Eighth, VWA submitted Magistrate Coghlan did not engage in hindsight reasoning in relation to the evidence of the change in Metricon’s system after the roof collapse. This is clear, it was submitted, from his Honour’s ruling as to the admissibility of the ‘Worksafe report’ which contained the recommendation to change the system. His Honour ruled the document admissible for the purpose of ‘determining whether it was reasonably practicable to adopt such measures’, an approach completely consistent with the decision in Kuhl v Zurich Financial Services Australia Ltd.[20] Further, the statement in his Honour’s reasons that ‘The issue however is what an employer acting reasonably, placed in the same position as Metricon would have done’, was an accurate statement of the law and contradicts the suggestion by Metricon that his Honour’s decision was based on hindsight.
[20](2011) 243 CLR 361 [38].
Analysis
Relevant principles
In Holmes, discussing what the Act required of employers, Harper J said:
It may be helpful to pause here for reflection. The Act does not require employers to ensure that accidents never happen. It requires them to take such steps as are practicable to provide and maintain a safe working environment. The courts will best assist the attainment of this end by looking at the facts of each case as practical people would look at them: not with the benefit of hindsight, nor with the wisdom of Solomon, but nevertheless remembering that one of the chief responsibilities of all employers is the safety of those who work for them.[21]
The issue of reasonable practicability is to be judged objectively.[22] Often this must involve a common sense assessment.[23] Each case is to be determined on its own facts.[24]
Industry Practice
[21](1992) 5 VIR 119 123.
[22]Australian Char [1995] VSC 168 [43] (30 June 1995).
[23]Kirk (2010) 239 CLR 531 [18].
[24]Holmes (1992) 5 VIR 119, 123; Australian Char [1995] VSC 168 [49] (30 June 1995).
The central thrust of Metricon’s submissions was that no employer either before or after the incident had in place the measures alleged by the prosecution to found criminal liability upon Metricon, and that all objective and subjective evidence, including WorkSafe’s own guidance material both before and after the incident did not mandate or even suggest implementation of the measures alleged against Metricon. In this context Metricon submitted the case advanced against it was clear:
Metricon should have had in place a system of work whereby no work should commence on any roof until the frame has been approved by a Building Inspector and necessarily all temporary bracing is replaced by the permanent support structures.
Metricon’s characterisation of the case against it is inaccurate. As I concluded above, the charge related to roof tiling work which commenced on 7 July, not to any roof work. The charge was not in relation to any roof, but specifically related to the residence under construction at 50 Scotland Court, Bannockburn, and identified that the engineering design for the residence required installation of PT braces to support the roof of the alfresco area.
Nor was the evidence of industry practice all one-way. Mr Skoko, Mr Parker and Mr Orchard each gave evidence to the effect that it was necessary the frame inspection pass so that work on the building site could go on to the next stage. In a similar vein, Mr Newbegin said Metricon’s system was to allow a day or two after inspection because:
It just gives a time — it gives us a — a couple of days — a couple of days’ grace to get items fixed if they needed to be done before you — depending on what happens on the — on our inspection and the surveyor’s inspection.
And there was the following exchange with Mr Bilston:
Did that in any way — did you take into account in any way prior to the incident the contents of a failed building inspection report? ——— We would, yes.
For what purpose? ——— If there was something deemed completely unsatisfactory then the roof wouldn’t be loaded, it would be pushed out.
The evidence of each of these witnesses was consistent with the result of the frame inspection being relevant to the decision about whether roof tiling should commence. That is of course a matter of common sense. It could hardly be argued that, considered objectively, a frame inspection report indicating the frame was not approved because of a fundamental defect relevant to the capacity of the frame to bear the weight of roof tiles was irrelevant to the decision about whether roof tiling should commence.
The WorkSafe safety alert did allow the possibility of roof work being undertaken prior to completion of structural elements. However, that possibility was heavily qualified by the need to take necessary precautions to ensure the workplace was safe and without risk to health. The contents of the safety alert imply that there might be circumstances where roofing work should not proceed because necessary precautions had not or could not be taken. In other words, an employer might respond to the risk of roof collapse associated with tiling a temporarily supported roof either by:
a) taking necessary steps to ensure the temporary supports were such that the work could be performed safely; or
b) by not allowing the work to commence until the permanent supports were in place and the frame was approved.
The large size of the alfresco area, and the engineering requirements for installation of the PT braces, were relevant matters to take into account when considering whether it was safe for roof tiling work to commence. The Metricon system did provide for frame inspections before tiling work commenced. However, there was no evidence that either Mr Thorley or Mr Miles was aware of the engineering requirements for PT braces in the alfresco area. The witnesses who described the need for and function of the PT braces were Mr Parker, Mr Orchard and Mr Skoko. Magistrate Coghlan’s finding as to reasonable practicability was consistent on the evidence of those witnesses and was open to him.
In my view evidence given as to industry practice, when understood in the context of the case put against Metricon, did not require a conclusion that VWA failed to discharge the onus it bore in relation to reasonable practicability.
Failure to consider the frame inspection report
Magistrate Coghlan found that neither Mr Bilston nor Mr Newbegin gave any consideration, when they received and reviewed Mr Skoko’s report, to the issue of risk associated with the roof being loaded with tiles. VWA did not seek to support that finding, and conceded it involved mischaracterisation of the evidence. Metricon submitted a fair reading of the reasons disclosed this unsupported conclusion was the basis upon which it was found guilty.
Neither Mr Bilston nor Mr Newbegin gave evidence about the function and purpose of the PT braces, or of the possible consequence of the braces not being installed. Mr Bilston was asked whether there was anything in his review of the failed frame inspection report, and the other information available to him in relation to the frame, which caused him any concern about whether or not it was safe for tiling work to continue on the roof on 7 July, to which he answered ‘not at all’. Mr Newbegin gave similar evidence. That was evidence of the subjective belief of each that there was no risk associated with roof tiling work in those circumstances. It would follow, if the evidence was accepted, that the steps identified as being reasonably practicable were unnecessary because there was no risk. However, Magistrate Coghlan accepted the evidence of Mr Parker, Mr Orchards and Mr Skoko, and the content of the WorkSafe alert, and concluded there was risk.
The test of whether the measures identified in the charge would have eliminated or reduced the risk and were reasonably practicable is an objective one. In Australian Char the court said:
The argument, in our view, misconceives the requirement that the issue of practicability is to be determined objectively. What the Full Court determined in Chugg was that the issue was not to be determined subjectively according to the knowledge and circumstances of the employer; rather, the issue was to be determined objectively having regard to knowledge acquired from all sources including those of the particular trade or industry of the employer.[25]
Magistrate Coghlan found the charge proven because he concluded Metricon failed to take reasonably practicable steps to eliminate or reduce the risk which he found existed. The state of mind of Mr Bilston and Mr Newbegin as to the absence of risk which lead to them not taking appropriate action in response to the failed frame inspection may have been relevant to the gravity of the offence but was not relevant to the question of whether the steps particularised were a reasonably predictable response to the risk. I agree with the submission of VWA that mischaracterisation of the evidence of Mr Bilston and Mr Newbegin did not affect Magistrate Coghlan’s conclusion as to reasonable practicability.
Hindsight reasoning
[25]Australian Char [1995] VSC 168 [45].
Ruling on the admissibility of a WorkSafe report which contained recommendations in line with the post roof collapse system adopted by Metricon, Magistrate Coghlan said:
Mr Gurvich referred to the case of Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11. At paragraph 38, Chief Justice French and Justice Gummow in a joint judgment stated: evidence of measures adopted by a defendant after the accident may be relevant in some circumstances when determining whether it was reasonably practicable to adopt such measures.
In his reasons, Magistrate Coghlan quoted the passage from Holmes[26] in which Harper J referred to the need to avoid hindsight reasoning. Magistrate Coghlan then identified the issue to be determined:
[26](1992) 5 VIR 119, 123 [40]–[45].
The issue however is what an employer acting reasonably, placed in the same circumstances would have done.
That statement, which is consistent with authority, indicates his Honour’s appreciation of the need to undertake a prospective analysis. After referring to steps taken by Metricon to change its system after the roof collapse, Magistrate Coghlan said:
Those steps were taken with the benefit of hindsight…
In my view these extracts from his judgment demonstrate Magistrate Coghlan was well aware of the need to, and did, avoid hindsight reasoning.
The reasonably practicable steps
Metricon submitted that in dealing with the element of reasonable practicability Magistrate Coghlan did not even refer to particulars 15(a) or (b) or appreciate that VWA was required to prove those matters beyond reasonable doubt. This submission appears to ignore the finding of Magistrate Coghlan, which I have set out above in paragraph 44, to the effect that if Metricon had communicated Mr Skoko’s report to Boral and RM Roofing or stopped work from continuing beyond the sarking and batten stage, the risk of serious injury or death from roof collapse would have been eliminated or reduced. That finding demonstrated Magistrate Coghlan had in mind the reasonably practicable measures pleaded in particular 15. His Honour’s reasons in relation to the reasonable practicability test should be read in the context of that finding.
The cause of roof collapse
Metricon submitted Magistrate Coghlan wrongly assumed that the temporary props in the alfresco area created the risk and caused the collapse notwithstanding that there was no evidence led to prove that was the cause, and wrongly rejected the evidence of Mr Bilston explaining the post-incident investigation that showed a failure to join the hip rafters as a potential cause of the collapse.
I have set out the limited evidence given by Mr Bilston in relation to the hip rafters in paragraph 30 above. Mr Bilston did say the hip rafters were an important structural element of the alfresco area, but he did not explain what he meant by that, or what function the hip rafters played in the alfresco structure. Mr Bilston did not say the hip rafters were a fundamental weight-bearing element in relation to loading the roof with tiles. He did give evidence that a post-roof-collapse photograph showed one hip rafter was not joined by two nail plates as required by the truss plan. However, he did not say the failure to join the hip rafter was a cause of the roof collapse, nor how the failure affected the capacity of the alfresco roof to bear weight. On the basis of Mr Bilston’s evidence Metricon submitted the most likely cause of the roof collapse was the failure to join the hip rafter.
An examination of his reasons demonstrates that Magistrate Coghlan did not reject Mr Bilston’s evidence, but did reject Metricon’s hip rafter submission. Magistrate Coghlan said:
I reject the suggestion that the answers given by Mr Bilston amounts to evidence that the likely cause of the roof collapse was as a result of the failure to comply with the truss plan in relation to the hip rafters. This suggestion was not a matter put to any other witness.
The final sentence in this paragraph should not be read as imposing an obligation on Metricon to put Mr Bilston’s hip rafter evidence to other witnesses in the sense contemplated in Brown v Dunn.[27] Rather, I understand Magistrate Coghlan was observing that the gap between the limited evidence given by Mr Bilston and the more expansive submission made by Metricon, was not filled by the evidence of any other witness. In my view Magistrate Coghlan’s conclusion that he should reject the hip rafter theory submission made by Metricon was open to him, and was in line with evidence given at trial.
[27]1983 6 R 67.
Magistrate Coghlan concluded that ‘… the absence of the PT braces was likely to be a contributing cause and clearly increased the risk of collapse of the larger than usual alfresco roof area.’ I agree with the submission of VWA that the causation finding was supported by the evidence given at trial by Mr Skoko, Mr Parker and Mr Orchard, the contents of the WorkSafe safety alert, and the sequence of events which unfolded on 6 and 7 July. The conclusion as to causation was open.
Further, I note Magistrate Coghlan’s critical conclusion, that the absence of the PT braces increased the risk of collapse of the alfresco roof, did not depend on a finding as to the cause of the incident.
Because it was open to conclude that it was reasonably practicable for Metricon to take the steps particularised in the charge to reduce the risk, grounds 5 to 11 fail.
Adequacy of reasons (Ground 12)
Metricon
Metricon submitted that whilst the nature of the jurisdiction of the Magistrates’ Court must be taken into account in assessing the sufficiency and cogency of reasons for a decision, in this case Magistrate Coghlan gave directions for the making of final submissions in writing. The Magistrate’s decision and reasons were delivered over six weeks after provision of final submissions. A fair reading of the reasons suggests Magistrate Coghlan followed the written submissions of the prosecution and by and large failed to deal with, by either ignoring or not mentioning or summarily dismissing without explanation, the detailed written submissions of Metricon. It was submitted Magistrate Coghlan’s reasons evidence a failure to properly consider the case put by Metricon, and to disclose a proper path of reasoning leading to the finding of guilt.
VWA
VWA submitted Magistrate Coghlan was not required to mention every fact or argument or authority relied on by Metricon.[28] Second, it was submitted the matters raised by Metricon in relation to the assessment of reasonable practicability were contradicted by VWA’s evidence and did not have the significance Metricon sought to give them. In the circumstances his Honour did not err in failing to mention some of the matters averred to by Metricon on this point.
[28]Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, 464 [62].
Thirdly, VWA submitted the reasons for decision demonstrate that Magistrate Coghlan directed his mind to the relevant issues and determined the matter in accordance with the law, and in that way demonstrate a process of reasoning and explain the basis for the decision.
Analysis
Magistrate Coghlan was under a duty to provide reasons which addressed the substantial points raised by the parties, and provided an intelligible path or reasoning from analysis of the evidence to findings of fact and then to his Honour’s conclusion.[29] Magistrate Coghlan was not required to mention every fact or argument relied on by Metricon.[30]
[29]Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1 [21]-[22] (10 February 2005).
[30]Whisprun (2003) 200 ALR 447, 464 [62].
The structure of Magistrate Coghlan’s reasons is clear and is based on the elements of the offence identified by the parties in final submissions. Within that structure his Honour set out the relevant evidence and determined each factual matter put in contention by the submissions of the parties.
Metricon’s final written submissions at trial summarised its position as follows:
In summary, the submissions set out below establish that:
1.There are deficiencies in the evidence adduced by the prosecution to establish that the named Accused was an employer.
2.There is no evidence capable of proving that Paul Altair was an employee of the Accused.
3.There are deficiencies in the evidence adduced by the prosecution to prove that, at the relevant time Adrian Newbegin and/or Ricky Bilston were employees of the Accused.
4.Even if it was established to the requisite standard that Newbegin and Bilston were employees of the Accused, plainly it has not been proved, beyond reasonable doubt that their health and safety was put at risk.
5.It has not been proved, beyond reasonable doubt that the system of work that the Accused had in place was not a reasonably practicable way of mitigating the alleged risk.
6.It has not been proved, beyond reasonable doubt that a reasonable employer in the position and circumstances of the Accused would have had in place the two measures alleged at paragraph [15] of the particulars. That is, the prosecution has not discharged its onus in respect of the element of reasonable practicability.
7.The prosecution case is misconceived. It is based on propositions that run contrary to the established and proven practices in the industry and seeks to place primary reliance upon an inspection, the purpose and function of which is not to determine whether a roof is safe to work on.
8.Moreover, in this case, the building Inspector did examine the temporary bracing (and the rest of the frame) and considered it safe and compliant with relevant Australian Standards. That is why he did not mention the temporary bracing in his report.
9.Finally, the lack of any proper investigation by Worksafe of how and why the collapse occurred makes it impossible to find that waiting until the frame was approved would have made any difference to the risk – especially taking into account the inspection regime in place. The evidence lead by the Accused suggests that the cause of the collapse was likely the failure to join the critical hip rafters – a fault not identified in any of the pre incident inspections.
Magistrate Coghlan’s analysis of evidence and conclusions of fact were responsive to and dealt with the substantial points raised by Metricon. His Honour’s findings of fact determined the necessary content of the reasons and demonstrated the path of reasoning. That path of reasoning followed the relevant provisions of the Act.
Metricon’s written outline in support of this ground was very general, and complained that Magistrate Coghlan:
… by and large failed to deal with, by either ignoring or not mentioning or summarily dismissing without explanation, the detailed written submissions of Metricon.
Metricon did not identify any particular evidence or substantial point upon which it relied at first instance to show how the reasons failed to address that matter, or explain why, in the context of the issues in dispute and matters to be decided, that failure rendered the reasons inadequate. Metricon did not say in what regard the reasons fail to disclose a path of reasoning. No oral submissions were advanced by Metricon in support of this ground.
In my view, the reasons given by Magistrate Coghlan were sufficient to enable a reader to understand how and why he reached the conclusion he did. Ground 12 fails.
Conclusion
I have found against Metricon in relation to Grounds 1 and 4 to 12. Ground 2 and 3 were conceded by VWA. However, success on those Grounds does not affect the outcome of the appeal. The appeal will be dismissed. I will hear from the parties as to any consequential orders.
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