Orr v Hunter Quarries Pty Ltd - [2022] NSWCCA 39

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39
Hearing dates: 15 November 2021
Date of orders: 2 March 2022
Decision date: 02 March 2022
Before: Beech-Jones CJ at CL at [1]
Walton J at [65]
Price J at [66]
Decision:
The questions posed by Russell SC DCJ on 13 May 2021 be answered as follows:
Q1:   Does the proper construction of the Criminal Appeal Act 1912 (NSW) permit me to withdraw questions which I have previously submitted to the Court of Criminal Appeal pursuant to s 5AE of that Act?
A:   The Court declines to answer.
Q2:   Does the proper construction of the Criminal Appeal Act 1912 (NSW) permit me to submit additional questions to those previously submitted to the Court of Criminal Appeal pursuant to s 5AE of that Act?
A:   Yes.
Q3:   Does the proper construction of the Act require the Court to determine (in the following order):
(a)   whether the pleaded risk to health and safety existed at the date of the alleged offence;
(b)   whether the pleaded measures were reasonably practicable within the meaning of s 18 of the Act;
(c)   whether the pleaded measures would have eliminated the risk to health and safety, or if not, minimised the risk to health and safety from the pleaded risk within the meaning of s 17 of the Act;
(d)   whether the failure by the Defendant to take those reasonably practicable measures was a significant or substantial cause of a worker being exposed to the risk of death or serious injury or illness?
A:   No.
Q4:   In respect of question 3(b) above, is the Court required to take into account and weigh up all of the matters listed in s 18 of the Act?
A:   Does not arise.
Q5:   In respect of question 3(c) above, does the proper construction of the phrase “so far as is reasonably practicable” in s 17 of the Act require the Court to assess whether the pleaded measures would have minimised the pleaded risk to health and safety to a greater degree than the measures (if any) that the duty holder had in place as at the date of the alleged offence?
A:   Does not arise.
Q6: Is the reasonable foreseeability of an incident in which the pleaded risk to health and safety manifested, relevant to assessment of the breach of the duty under s 19(1) of the Act?
A:   Yes, but it is not necessarily determinative.
Q7:   Is the reasonable foreseeability of the pleaded risk to health and safety to the duty holder relevant to the assessment of whether pleaded measures were “reasonably practicable” having regard to the provisions of s 18 of the Act?
A:   Yes, but it is not necessarily determinative.
Q8:   Does the Act permit the Court to take into account whether the duty holder could reasonably foresee the conduct of the worker(s) exposed to the pleaded risk, prior to considering whether the pleaded…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWCCA 39
Decision Date: 02 March 2022

CaseChat Overview and Summary

The case of Orr v Hunter Quarries Pty Ltd involved a prosecution under the Work Health and Safety Act 2011. The primary judge had published reasons for the decision but had not yet issued the final orders. The Court was required to consider the utility of the stated case procedure and whether the primary judge was obligated to address certain components of an element of the offence in a specific order. Additionally, the Court needed to determine whether the primary judge had the power to withdraw questions once they had been properly submitted.

The Court began by noting that the primary judge had the authority to submit questions to the Court before making the final orders, and that there was no power to withdraw properly submitted questions. The Court then addressed the contention that the primary judge had an obligation to address components of an element of the offence in a particular order. The Court found that there was no such requirement. The questions posed by the parties concerned the relevance of the reasonable foreseeability of the risk and the accident in which the risk manifested. The Court was limited to strictly answering the questions posed, and it answered them "yes, but not necessarily determinative". The balance of questions posed did not arise or were not appropriate to answer.

In conclusion, the Court found that the primary judge did not have an obligation to address components of an element of the offence in a specific order. The questions posed were answered, but the Court noted that the answers were not necessarily determinative. The primary judge was not required to address the components in a specific order. The Court did not consider the other questions posed as they did not arise or were not appropriate to answer.

Orders