Munns, Livingstone and Hendricks v Secretary for Labour

[1989] TASSC 77

Serial No 77/1989
List “A”

CITATION:              Munns, Livingstone and Hendricks v Secretary for Labour [1989] TASSC 77; A77/1989

PARTIES:  MUNNS
  LIVINGSTONE
  HENDRICKS
  v
  SECRETARY FOR LABOUR

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 104/1989
DELIVERED ON:  21 December 1989
JUDGMENT OF:  Cox J

Judgment Number:  A77/1989
Number of paragraphs:  19

Serial No 77/1989
List "A"
File No LCA 104/1989

MUNNS, LIVINGSTONE and HENDRICKS v SECRETARY FOR LABOUR

REASONS FOR JUDGMENT  COX J

21 December 1989

1. This is a notice to review the appellants' convictions for a breach of the Industrial Safety (Health and Welfare) Act 1977, s32 ("the Act"). The prosecutions arose out of an incident which occurred on 3 July 1987 at the Retail Butchers Shop operated by Tas Meats Limited at its abattoir complex at Camdale near Burnie. A 16 year old apprentice named Michael Cobbing was instructed by the foreman in charge of the butchers shop, Richard Hall, to clear a ground level drain in the floor of the cutting room which had become blocked by an accumulation of fat. Cobbing at first attempted to clear the blockage by flushing hot water into the drain through a hose. When this method was unsuccessful he was advised by Hall to go to the store and obtain some caustic soda. He took with him a small bucket and obtained the keys to the chemical store from the storeman. He tipped a quantity of the caustic soda from a large container into the bucket and returned to the shop. The hose was still causing hot water to run into the drain and Cobbing leaned over, and with his face over the drain, shook some of the caustic soda from the bucket into the drain and then placed the bucket on the floor. He again leaned over the drain and a mixture of hot water and caustic soda rushed back and hit him on the face and upper part of his body causing severe burns to his eyes and face resulting in the loss of his right eye and the loss of some vision in his left eye.

1. Cobbing had been employed by Tas Meats Limited from December 1986 and from that time until the date of the accident he had used caustic soda to clean the floor of the butchers shop, but not to clear blocked drains. At the time of the accident he was wearing gum boots, rubber gloves and a rubber apron which did not fully protect his upper body and he was not wearing a mask, goggles or other means of protection for his face or eyes. Furthermore, he had not been directed to wear any protective clothing other than what he was wearing.

1. The cause of the accident was not in dispute, nor was it disputed that Cobbing had not been given any directions or advice relating to the use of caustic soda and the precautions to be taken in its handling and use, including the type of protective clothing to be worn.

1. Tas Meats Limited was a subsidiary of Richardsons Meat Industries Limited which was placed in receivership in July 1986. At that time the appellant Munns was the Chief Executive of the Richardsons Meat Industries Limited group of companies and continued to hold that position as at 3 July 1987. The appellant Livingstone was appointed by the receivers in November 1986 as the Consultant Manager responsible for the group's operations at its plant at Quoiba and in March 1987 he also became responsible for the operation of the plant at Camdale. The appellant Hendricks was employed as the Plant Manager at Camdale, having been promoted to that position by Livingstone.

1. Section 32 of the Act provides:–

"Every occupier of a work place and every person carrying on an industry shall take reasonable precautions to ensure the health and safety of persons employed or engaged at that work place or in that industry."

1. Alternative charges against each appellant, first on the basis that he was the occupier of a work place and second on the basis that he was a person carrying on an industry, were laid. The appellant Munns was found to be a person carrying on an industry but not an occupier and he was convicted accordingly. The other appellants were convicted on the basis that they were occupiers of a work place. In addition all were charged with three offences against the regulations made under the Act, namely reg161, which imposes on the occupier of a work place in which harmful substances are used the obligation to ensure that all necessary precautions are taken to protect workers therefrom and further to make their employees aware of the dangers thereof and the precautions to be used when handling or working with them and also to supply any necessary protective clothing or equipment to protect workers required to use these substances.

1. The appellant Munns not having been shown to be an occupier was acquitted of these charges, but the other two appellants were convicted. Mr Munns was fined $2,500 on the charge proved against him, while convictions were recorded against Messrs Livingstone and Hendricks on the four offences proved against them and no monetary penalty was imposed.

1. The particulars given of the breach by each appellant of his duty under s32 were that each of them:–

"(a)failed to warn the said Michael James Cobbing or to cause him to be warned of the danger of caustic soda;

(b)failed to advise the said Michael James Cobbing or to cause him to be advised of the precautions to be taken when handling or using caustic soda;

(c)failed to provide the said Michael James Cobbing or to cause him to be provided with protective clothing or equipment appropriate for use when handling caustic soda; and

(d)failed to maintain first aid facilities for the treatment of caustic soda injuries at the said premises."

1. The learned magistrate in announcing his findings on 25 August 1989 said:–

1. "The amended complaint contains particulars of the precautions which it is alleged the defendants failed to take pursuant to the duty imposed by Section 32, and it also contains particulars of the alleged breach of the provisions of regulation 161. In my opinion each of those particulars have been made out as matters of fact by the prosecution, and if the defendants or any of them were subject to the duty created by the legislation a defence of lack of knowledge or of honest and reasonable mistake is not available. The legislation was enacted for the protection of the health and safety of persons employed in industry where they may be subject to injury and the obligations imposed by that legislation are more readily enforceable by placing the person subject to the duty it creates under absolute liability. It is generally accepted that statutes which create offences for the purpose of regulating social and industrial conditions or to protect the revenue, particularly if the penalty is monetary and not too large, may more easily be regarded as imposing absolute liability (per Dawson J in He Kaw Teh v The Queen (1985) 157 CLR 523 at 594 – 595). The real issue is whether the defendants were liable to the duty which is created by the Act and the Regulations."

He then proceeded to consider whether each appellant had been shown to be either an occupier of a work place or was a person carrying on an industry within the meaning of s32 and made the findings in this respect I have already noted. No issue is taken by the appellants that those findings were correct and that each was under the obligations set out in the section. What they complain of is that the learned magistrate misdirected himself in law by holding that the section imposed absolute liability upon those subject to the duty so that proof of the particular failures alleged without more was sufficient to ground a conviction. Neither Livingstone nor Hendricks challenges his conviction for breaches of the regulations.

1. The learned magistrate proceeded, after finding each subject to the duty, to make the following findings:–

"[The appellant Munns] was aware of the presence of chemicals on the site but was not aware of the type of chemicals or of the precautions to be taken for their use. He had not made any enquiries to ensure that there was adequate protective clothing for the employees when using the chemicals or that the employees were advised as to the dangers of the chemicals. He had 21 years experience in the meat industry and was aware of the use of chemicals as cleaning materials and in not taking the precautions alleged against him he failed to discharge the duty imposed upon him by Section 32 of the Act. …

[The appellant Livingstone] has had many years experience in the meat industry and in November 1986 he was appointed as a consultant manager for RMI at its plant at Quoiba. In March 1987 he also took over responsibility for the plant at Camdale. When he commenced at Quoiba, Livingstone said that there was no safety program in place but he implemented one and was in the process of doing the same thing at Camdale when Cobbing had his accident. A safety program was implemented immediately after the accident occurred but Livingstone was previously aware that there were chemicals on the site and their location on the site but was not aware of the existence of the caustic soda. The fact that he had initiated a safety program at the Quoiba plant and had considered the necessity for a similar program at Camdale is evidence of the importance which this defendant placed on need for safety in the work place and with his knowledge of the meat industry and of the presence of chemicals, a prudent man would have ascertained the nature of the chemicals and put in place procedures for their safe use. This defendant was the person who, over all others, had the responsibility for the management and the control of the Camdale plant and could engage persons in employment on that site and as a consequence he had the authority and capacity to take precautions for the safety and protection of the employees and in failing to do so he was in breach of his duty under the Act and under the Regulations. However, I do not find that he was carrying on an industry in the same sense as the first defendant. …

[The appellant Hendricks] was in a similar position to Livingstone, although his duties were confined to the Camdale plant where he was employed as plant manager which effectively made him responsible to Livingstone for the day to day running of the plant. He had the authority to employ persons subject to Livingstone's consent, but I find on the evidence that he enjoyed the confidence of Livingstone and he had independent authority to a large extent. This defendant was also aware of the presence and use of chemicals but thought that all the chemicals in the store were harmless. As plant manager he had a direct responsibility for the safety of the employees at the plant. His failure to act to ascertain the true nature of any chemicals which may have been on the site and therefore his failure to take the steps referred to in the particulars of the complaint was a failure by him to take reasonable precautions for the safety and welfare of those employees. He was in breach of the general duty in Section 32 and also in breach of the duties cast upon the occupier by regulation 161(1), (2) and (4). I do not regard him as having the wider authority for the management or control of the company so that it could be said that he was carrying on an industry."

1. The obligation under s32 of the Act is to take reasonable precautions to ensure the health and safety of employees at the work place. It reimposes in statutory form the employer's common law duty of care as stated by Parker LJ in Wilson v Tyneside Window Cleaning Co [1958] 2 QB 110 at 116:–

"The master's duty is general, to take all reasonable steps to avoid risk to his servants. For convenience it is often split up into different categories, such as safe tools, safe place of work, or safe system of work, but it always remains one general duty."

1. See also Cavenagh v Ulster Weaving Co Ltd [1960] AC 145 at 165 per Lord Keith. Merely because one particular precaution such as the giving of a warning as to the danger of caustic soda (particular (a) above) may be regarded as a reasonable precaution in vacuo proof that it was not given does not necessarily mean that the defendant has failed to take a reasonable precaution to ensure the health and safety of his workmen so as to be held in breach of the section. But the learned magistrate did not consider the reasonableness of the precautions in vacuo. In respect of each defendant he considered the length of time he had been with the company, his general experience of the industry, his knowledge or means of knowledge of the presence of chemicals on the premises, his degree of responsibility for the operations of the company generally and of the premises in particular and the precautions it would have been open to him to take or initiate. In each case he found the particular defendant to have fallen short in his response so that he was satisfied there had been a breach by each one of that defendant's responsibilities and obligations.

1. When the learned magistrate spoke of the obligation under s32 being an absolute one, he was speaking in the same context as that to which Dawson J was referring in the following passage which prefaced his reasons for judgment in He Kaw Teh v The Queen (supra) commencing at p590, namely:–

"In relation to the offence of importing narcotic goods into Australia, the question which arises is whether the prosecution has to prove any mental state accompanying the importation. In other words, the question is whether mens rea is an ingredient of the offence to be proved by the prosecution. If it is not, the further question arises whether the offence is one of strict liability which, whilst not requiring the prosecution to prove mens rea in order to make out a case, allows the accused to raise honest and reasonable mistake by way of exculpation. To that extent a mental element is imported into an offence of strict liability short of requiring proof of mens rea by the prosecution. The mistake must involve a belief in a state of affairs which, if true, would make the act of the accused innocent. If the statute in neither of these ways requires any mental state to accompany the importation, then the offence is an absolute one and is complete once the prohibited act of importation is proved. Offences of strict or absolute liability are creatures of statute. The terms 'strict liability' and 'absolute liability' are not always used precisely and sometimes interchangeably, but used as I have used them, they are a convenient way of drawing the distinction to which I have referred."

Having directed himself that neither ignorance of nor mistake as to the presence of caustic soda at the work place or the absence of any safety precautions in place should it be used constituted any defence to the charge the learned magistrate in making his findings first found each appellant a person to whom the section applied and then found the shortcomings in their responses to which I have referred. When one studies his findings and the structure of his determination of the case it is not possible to find misdirection or error. He was entitled to reach the conclusion he did reach that each appellant had committed a breach of s32. His characterisation of the offence as one of absolute liability within the meaning attributed to it by Dawson J above was not an error as claimed in ground 1 of the notice to review, nor do his findings show that he failed to consider or adequately consider evidence of the precautions taken by each of the appellants to ensure the health and safety of persons engaged at the work place and/or in the industry as claimed in ground 2.

1. It is however claimed that some comments made by the learned magistrate when passing sentence on the appellants approximately a fortnight after findings of guilt had been announced are inconsistent with his findings. What he later said, so far as is relevant, was:–

"... the one who must take the ultimate responsibility is the defendant Munns. He had been employed by Richardson's Meat Industries for some years and had held the position of Chief Executive at the time of the accident. He was the person within the company who had the obligation to know the relevant legislation creating duties directed to the safety of the company's employees and he had the duty to ensure that those employees who had the responsibility of the management and control of the specific work place carried out those duties created by the legislation. Munns cannot escape responsibility by relying upon Livingstone to implement a safety program. He was the one who should have taken the initiative particularly as he had been in a position of responsibility for a period of time. Livingstone only became responsible for the Camdale Plant in March 1987 having been brought out of retirement in New South Wales in November 1986 to manage the Quoiba Plant of the company. At that plant he had identified the need for a safety program and had one been, and had one implemented. When he also became responsible for the Camdale plant in March 1987 he immediately identified the same problems and began to implement a similar program, but unfortunately it was not in place before Cobbing suffered his injuries. It could not be said that Livingstone failed to act but that he was not able in the time available to him to remedy years of neglect by the company. Hendricks had been in a position of responsibility for even less time than Livingstone. He was appointed Plant Manager by Livingstone in or about April 1987 and was subject to Livingstone's direction and was working with him in the implementation of a safety program. It was not in my view reasonable to expect that Hendricks should take any independent initiative."

1. What he said concerning Mr Munns is not inconsistent with the finding of guilt. Though an occupier may responsibly delegate the due performance of his responsibilities under the Act to others within his work force, such delegation does not relieve him of all further responsibility, especially the responsibility to enquire as to the results achieved or progress made by the delegate (Collins v State Rail Authority (1986) 5 NSWLR 209). The learned magistrate said nothing in contravention of that proposition when he said that Mr Munns could not escape responsibility by relying upon Mr Livingstone to implement a safety programme. The evidence suggested that although Mr Munns was aware of Mr Livingstone's decision he made no attempt to follow it up.

1. As to Mr Livingstone the following sentence is said to be inconsistent with the findings of guilt:–

"It could not be said that Livingstone failed to act but that he was not able in the time available to him to remedy years of neglect by the company."

Mr Livingstone did not fail altogether to act. What he did however was insufficient to remedy the company's long standing failure to address the general problem of safety and the time available to Mr Livingstone was insufficient for that purpose. That is not to say however that he could not reasonably have attended to those aspects of safety relevant to the complainant's tasks in the three months or so between his appointment to Camdale and the date of the injury.

1. As to Hendricks the comment was:–

"It was not in my view reasonable to expect that Hendricks should take any independent initiative."

That was however in the context that Hendricks had been working on the initiative of preparing and implementing Livingstone's general safety programme. It was not reasonable, said the magistrate, to expect Hendricks to start some other independent programme, but that does not relieve him from responsibility as the man on the spot for identifying this potential hazard and ensuring that appropriate steps were taken to ensure that it did not cause harm. The learned magistrate was not saying that Hendricks could not have been expected to do anything. He was, as the learned magistrate found, aware of the presence of chemicals, though not of their identity, and he had at least two months to determine that and to take the appropriate precautions, notwithstanding that the general safety programme was not yet fully implemented. In my view there was no reason to interfere with the convictions.

1. The appellant Munns complains that he has unfairly received disparate treatment to that of his co–offenders and relies on the principles set out in cases such as Prestage v The Queen [1979] Tas SR 270; Lowe v The Queen (1984) 154 CLR 606 and Riley v The Queen [1986] Tas R 199. The learned magistrate's comments, which I have already quoted, clearly mark out Munns as the principal offender and attribute reasons which have not been successfully assailed for reaching that conclusion. It was not a case where the same punishment should fall on each defendant for it could not be said for those reasons that all things were otherwise equal. The learned magistrate was entitled to take the view that Livingstone and Hendricks were relatively minor offenders and that the recording of a conviction in their cases was adequate punishment, whereas in the case of Munns a sentence of general deterrence was warranted. The appeal will be dismissed.