R v H Waterhouse & Son Pty Ltd - [2009] VSCA 121

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 503 of 2007

THE QUEEN
	v
H WATERHOUSE & SON PTY LTD

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JUDGES:	WARREN CJ, VINCENT and NETTLE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 May 2009
DATE OF JUDGMENT:	9 June 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 121

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CRIMINAL LAW – Occupational health and safety – Failure to provide and maintain safe workplace – Failure to provide adequate information, instruction, training or supervision to employees – Employees of independent contractor sustaining illness resulting from unsafe working conditions – Privilege against self-incrimination – Whether applicable to documents required to be produced under s 39 of Act – Words and phrases – ‘Control’ – ‘Employer’ – ‘Matters over which he has control’ – ‘So far as is practicable’ Occupational Health and Safety Act 1985 ss 4(1), 21(1), 21(2)(a), (b) and (c), 21(3)(b), 39, 40(8), 42(1)(c) –Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P G Nash QC with Mr A F Lindeman	Peter Zablud & Co
For the Respondent	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

WARREN CJ:
VINCENT JA:
NETTLE JA:

Following a trial in the County Court at Melbourne, on 20 September 2006 the jury found the applicant guilty of:

· One count of failing to provide and maintain plant that was, so far as reasonably practicable, safe and without risks to health, contrary to s 21(2)(a) of the Occupational Health and Safety Act 1985 (‘the Act’) (Count 1); and

· One count of failing to provide such information, instruction, training or supervision to employees of the employer as was necessary to enable those persons to perform their work in a way that was safe and without risks to health, contrary to s 21(2)(e) of the Act (Count 2).

After hearing a plea in mitigation of penalty, on 14 December 2006 the judge sentenced the applicant on Count 1 to a fine of $20,000, and on Count 2 to a fine of $20,000, making a total fine of $40,000 and granted a stay of payment for 60 days.

The applicant now seeks leave to appeal against conviction.[1]
[1]An application for leave to appeal against sentence was abandoned in the course of argument.

The evidence

The evidence at trial was that at relevant times the applicant operated a saw mill at Woori Yallock and early in 2003 began to set up a pine treatment plant at that site. Among other things, the work involved relocating a number of treatment tanks from another site to the Woori Yallock site and fabricating a mixing tank from which to feed copper chrome arsenate treatment solution into the treatment tanks.

K & T Engineering Pty Ltd (‘K & T’) carried on an engineering business which included fitting and turning and welding, and early in 2003 the applicant retained K & T on an informal basis to provide skilled labour at an hourly rate to carry out the work as required by Mr David Spence, a director of the…

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: [2009] VSCA 121
Decision Date: 9 June 2009

CaseChat Overview and Summary

The case of R v H Waterhouse & Son Pty Ltd dealt with charges against the company under the Occupational Health and Safety Act 1985, arising from the illness of employees of an independent contractor who were exposed to unsafe working conditions on the company's premises. The dispute was heard in the County Court of Victoria, where the company contested the charges brought against them by the Department of Occupational Health and Safety. The primary issue before the court was whether the company had a duty of care under the Act to ensure the safety of not only their own employees but also the employees of an independent contractor who were working on their premises. The court also considered whether the company had adequately provided information, instruction, training, or supervision to prevent the exposure to unsafe conditions.

The court examined the definitions and scope of key terms such as "employer," "control," and "matters over which he has control" as defined in the Act. It was necessary to determine if the company, as the party in control of the premises, had the requisite duty to ensure the safety of all workers present, including those employed by an independent contractor. Additionally, the court addressed whether the privilege against self-incrimination applied to the production of documents required under section 39 of the Act. The company argued that the privilege should protect them from being compelled to produce documents that could incriminate them, but the court found that the statutory obligations to produce such documents did not infringe on this privilege.

After thorough examination of the statutory provisions and applicable case law, the court concluded that the company did have a duty to ensure the safety of all workers on their premises, including those of independent contractors. The court held that the company was required to provide adequate information, instruction, training, or supervision to prevent exposure to unsafe conditions. The privilege against self-incrimination did not apply to the requirement to produce documents under section 39 of the Act. Consequently, the appeal by H Waterhouse & Son Pty Ltd was dismissed. The final orders confirmed the conviction against the company and the associated penalties.

Orders