Pearce, Robert Lindsay v BHP Steel (AWI) Pty Ltd
[1998] TASSC 147
•25 November 1998
147/1998
PARTIES: PEARCE, Robert Lindsay
v
BHP STEEL (AWI) PTY LTD
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 80/1998
DELIVERED: 25 November 1998
HEARING DATE/S: 18 November 1998
JUDGMENT OF: Underwood J
CATCHWORDS:
Magistrates - Jurisdiction and procedure generally - Jurisdictions powers and duties - Limitation as to time - When time runs - Continuing offences - Breach of Workplace Health and Safety Act 1995 - Whether continuing offence.
Workplace Health and Safety Act 1995 (Tas), ss14(1) and 55.
R v Industrial Appeals Court Ex parte Barelli's Bakeries Pty Ltd [1965] VR 615; Jones v Lorne Saw Mills Proprietary Ltd [1923] VLR 58; Solicitor to the Board of Trade v Ernest [1920] 1 KB 816, referred to.
Aust Dig Magistrates [27]
REPRESENTATION:
Counsel:
Applicant: F C Neasey
Respondent: P G Wood
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: Piggott Wood & Baker
Judgment category classification:
Court Computer Code:
Judgment ID Number: 147/1998
Number of pages: 5
Serial No 147/1998
File No LCA 80/1998
ROBERT LINDSAY PEARCE v BHP STEEL (AWI) PTY LTD
REASONS FOR JUDGMENT UNDERWOOD J
25 November 1998
The issue on this motion to review is whether the Workplace Health and Safety Act 1995 ("the Act"), s14(1) creates a continuing offence.
The complaint
On 4 May 1998, the applicant made a complaint to a justice that the respondent:
"… being a person who on or about 15th April, 1997 supplied plant, to wit a BHP shock stop energy absorber, to Maintenance Systems Pty Ltd of Derwent Park in Tasmania, for use at a workplace did fail between the date and 3rd May, 1997 so far as was reasonably practicable to ensure that the design and construction of a component of the said plant, ie; an internal pin and shackle attached to the said plant, was such that persons who used the said plant properly were not, in doing so, exposed to risks to their health and safety …".
There follows by way of particulars, a statement of fact that a workman was injured when the shackle gave way as he was climbing a dam face. The charge also particularises the parts of the pin and shackle that were inadequately designed and/or constructed.
The complaint also alleges in the alternative, a breach of the same subsection on the basis that the respondent was the manufacturer of the plant referred to in the first matter of complaint. Otherwise, the two matters of complaint are indistinguishable.
Mr Wood, counsel for the respondent, both in the court below and on the hearing of the motion, relied upon the limitation provision in the Act, s55 which provides:
"55 ¾ Notwithstanding anything in any other Act, proceedings for an offence against this Act may not be instituted later than 12 months after the act or omission alleged to constitute the offence."
Accordingly, on behalf of the respondent, Mr Wood entered a special plea before the learned magistrate as provided by the Justices Act 1959, s74A(5)(c), "that further proceedings ought not to be had on the complaint". Mr Wood's submission to the learned magistrate was that ex facie, the complaint could not succeed because:
the offence charged in the first matter of complaint was alleged to have been committed between 15 April and 3 May 1997;
although no date was pleaded with respect to the second matter of complaint, by virtue of the nature of the alleged conduct the offence must have been committed before that alleged in the first matter of complaint, viz, before 15 April 1997; and
the complaint was not made until 4 May 1998 and consequently, it was outside the time prescribed by the Act, s55.
Mr Neasey, who appeared as counsel for the applicant both in the Magistrates' Court and in this Court, submitted that the offence created by the Act, s14(1) is a continuing one and accordingly the complaint was not out of time.
I have some reservations about the entry of a plea that further proceedings ought not to be had on the complaint in the circumstances of this case. That plea is in the nature of a special plea in bar. See Lillico v McKenna & Ors (1995) 5 Tas R 147 at 151; R v O'Loughlin; ex parte Ralphs (1971) 1 SASR 219 at 237 et seq. The Act, s55, does not limit the jurisdiction of the magistrate. It merely provides a defendant with a defence. See Adams (Deputy Federal Commissioner of Taxation (Victoria)) v Chas S Watson Pty Ltd (1938) 60 CLR 545; Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369. Accordingly, it may have been more appropriate for a plea of not guilty to have been taken and a submission that there was no case to answer made at the conclusion of the prosecution evidence. However, nothing turns upon this procedural question, for Mr Neasey conceded that if this Court concluded that the offence was not a continuing one, the limitation defence would have been established and the motion to review ought to be dismissed.
A question of statutory construction
Continuing offences are not unknown to the law. It has been held in many cases that a failure to comply with the provisions of an award concerning the payment of wages to employees and the like is a continuing offence. See, eg, R v Industrial Appeals Court Ex parte Barelli's Bakeries Pty Ltd [1965] VR 615; Cox v Ketchell [1973] Tas SR 33. However, Croom-Johnson J in R v Wimbledon Justices ex parte Derwent [1953] QBD 380 said, at 390:
"As a general rule, the court is not, I think, eager to find continuing offences created by a statute, and certainly not without express words which make clear that that was the intention of the legislature when the statute was passed."
It is a question of ascertaining the intention of Parliament. Did the Parliament intend the Act, s14(1) to be a continuing offence? As Avory J observed in Solicitor to the Board of Trade v Ernest [1920] 1 KB 816 at 823, "[t]he ordinary way to treat an offence as a continuing offence is to provide a penalty for each day during which the offence continues". No daily penalty is prescribed for a breach of the Act, s14(1). However, absence of a daily penalty is not determinative of the issue. The statute "may indicate by its general terms that an offence is or may be a continuing one …" per Cussens J, Jones v Lorne Saw Mills Proprietary Ltd [1923] VLR 58 at 65. With respect to the distinction between statutes creating continuing offences and statutes creating single offences, Smith J said in R v Industrial Appeals Court Ex parte Barelli's Bakeries Pty Ltd (supra) at 623:
"The distinction is between, on the one hand, an offence which, once committed, is complete and concluded and exists only in the past, and, on the other hand, an offence constituted by a continuing breach of a duty to take action to put an end to a forbidden state of affairs in this case that wages which have become payable under a determination are unpaid."
Did the Act, s14(1) impose a continuing duty to take action to put to an end a forbidden state of affairs? Mr Neasey contended that it did. The subsection in question provides:
"14 ¾ (1) A person who designs, manufactures, imports or supplies any plant for use at a workplace must so far as is reasonably practicable ¾
(a)ensure that the design and construction of the plant is such that persons who use the plant properly are not, in doing so, exposed to risks to their health and safety; and
(b)when the plant is supplied, ensure that adequate information is supplied in respect of ¾
(i) any dangers associated with the plant; and
(ii) the conditions necessary to ensure that persons using the plant properly are not, in doing so, exposed to risks to their health and safety.
Penalty:
In the case of ¾
(a)a body corporate, a fine not exceeding 1 500 penalty units; and
(b)a natural person, a fine not exceeding 500 penalty units."
On behalf of the applicant, Mr Neasey submitted that the duty imposed by s14(1)(a) continued in perpetuity, or at least for as long as the plant (defined by the Act, s3(1)) remained in existence, but I think it would take very clear words indeed to impose a statutory duty that inured for that length of time.
On analysis of the subsection, it can be seen that the duty imposed with respect to any "plant" for use in the workplace falls equally upon the following persons:
the designer;
the manufacturer;
the importer; and
the supplier.
Of course, with respect to any relevant "plant", one person may fall into two or more of the above categories. The statutory duty imposed on each of them is spelled out by par(a):
to ensure, so far as it is reasonably practicable, that the design and construction of the plant is such that persons who use it properly are not thereby exposed to risks to their health and safety.
Mr Neasey submitted that the expression "so far as is reasonably practicable" made the interpretation for which he contended reasonable. He submitted that the subsection imposed a duty on the persons therein identified to "do something about faulty plant". He drew an analogy with car manufacturers who issue recall notices when they become aware of some defect in a motor car that they have manufactured. However, I do not accept that submission. The following mitigates against it:
The duty imposed by par(a) is not to "ensure (so far as is reasonably practicable) that … the plant is such that persons who use [it] properly are not, in doing so, exposed to risk to their health and safety."
The duty is to ensure that the design and construction of the plant is such that persons who use it properly are not, in so doing, exposed to risk to their health and safety.
The duty imposed on the designer, the manufacturer, the importer and the supplier is the same. Its scope is limited to the design and construction of the plant. Its content depends upon whether the relevant person is the designer, the manufacturer, the importer or the supplier.
The duty arises upon the occurrence of the following events:
the defendant has designed or manufactured or imported or supplied "plant" (as defined by the Act);
the plant is for use at a workplace (as defined by the Act);
the plant has been designed and constructed.
The duty is to:
do all that is reasonably practicable to ensure that the design and construction of the relevant plant is such that persons who use the plant properly are not thereby exposed to risk to their health and safety.
The duty does not arise until there has been design and construction and thus, is prescribed with respect to past events. It attaches to the persons who design, manufacture, import or supply as the case may be. The words of the section do not impose a continuing duty. Once "plant" has been constructed, there is nothing further the designer or the manufacturer can do about either the design or the construction of that plant. This is so, even if he or she thereafter considers that the design is defective and a new design or modification of the old design is required. That new design will do nothing to ensure that the design and construction of the plant already in existence is such that persons who use the plant properly are not thereby exposed to risks to their health and safety. As I say, the duty is not to ensure that the plant itself does not expose persons who use it properly to risks to their health and safety. It is to ensure with respect to two matters only, viz, the design and construction of that plant, that they are or were such that subsequent use of the plant will not expose the user to risks to their health and safety.
The same can be said with respect to each of the other two categories of persons identified by s14(1). The duty upon them does not arise until the relevant act of importing or supply. The duty is to take all reasonably practicable steps to ensure that the design and construction of the imported or supplied plant is such that its proper use will not expose a user to a risk to his or her health and safety. Without wishing to exhaustively describe the duty imposed upon the last two mentioned categories of persons, it would include, at the least, a duty to look out for, and examine the design and construction of the imported or supplied plant and, perhaps in appropriate cases, to take expert advice with respect to it.
Difficulty arises from the expression "a person who designs, manufactures, imports or supplies any plant". It is a descriptive phrase and yet with respect to any single "plant", is not a continuing state of affairs. Once any plant has been designed, manufactured, imported or supplied, the person who did one or more of those things ceases to be a person who designs, manufactures, imports or supplies and necessarily becomes a person who designed, manufactured, imported or supplied plant. Thus, the only reasonable way to construe the subsection is to read it as meaning no person shall design, manufacture, import or supply any plant unless he has, so far as reasonably practicable ensured that the design and construction is such that persons who use it properly are not exposed to risks to their health and safety.
In the case of a manufacturer (count 2) and in the case of a supplier (count 1), the time prescribed by the Act, s55 begins to run at the moment the manufacture and supply respectively is complete. By that stage, the manufacturer and the supplier will have either taken all reasonably practicable steps to ensure that the design and construction of the plant meets the requirements of par(a) or not, and accordingly, are or are not in breach of the statutory duty imposed by the subsection.
Accordingly, I reach the conclusion that the learned magistrate was correct in concluding that the duty imposed by the Act, s14(1)(a) was not a continuing one. The Act contains a number of examples where the Parliament has imposed continuing duties. Section 15(1) provides:
"15 ¾ (1) A person who has control of any premises, plant, substance or temporary public stand to which subsection (2) applies must ensure so far as is reasonably practicable that the premises and the means of access to or egress from the premises, or the plant, substance or temporary public stand are safe and without risk to health and safety.
Penalty:
In the case of ¾
(a) a body corporate, a fine not exceeding 1 500 penalty units; and
(b) a natural person, a fine not exceeding 500 penalty units."
Section 19 provides:
"19 ¾ A person must ensure that he or she is not, by the consumption of alcohol or a drug, in such a state as to endanger his or her own safety at a workplace or the safety of any other person at a workplace.
Penalty:
Fine not exceeding 50 penalty units."
These are two examples where the statutory duty is imposed with respect to a continuing state of affairs. Those sections are to be contrasted with s14(1)(a) which imposes a duty upon a person who has designed, manufactured, imported or supplied plant, which is confined, except in the case of the designer, to past events, viz, the design and construction.
I should add that it is clear that the majority of the provisions of the Act are in common form with legislation in other jurisdictions. See, eg, Occupational Health, Safety and Welfare Act 1986 (SA) and Occupational Health, Safety and Welfare Act 1984 (WA). However, my researches have been unable to find any other judicial consideration of the issue raised by this motion to review.
Finally, the motion to review also complains that the learned magistrate erred in that he failed to deal with count 2, the alternative charge on the complaint. This is correct in the sense that the learned magistrate addressed all his reasoning to count 1, and having found that it was not a continuing offence, simply dismissed the whole of the complaint. However, nothing flows from this error for, as Mr Neasey conceded, if the offence charged by count 1 is not a continuing offence, it followed that the offence charged in the alternative by count 2, also is not a continuing offence.
Accordingly, the motion to review is dismissed.
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