R v H Waterhouse & Son Pty Ltd
[2009] VSCA 121
•9 June 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 503 of 2007
| THE QUEEN |
| v |
| H WATERHOUSE & SON PTY LTD |
---
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 | |
---
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.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P G Nash QC with | 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 applicant. One of the employees which K & T so provided to the applicant was Brett Rowe.
At that time, Brett Rowe was 21 years of age and had been working for K & T as a welder for a little over a year. He had no formal qualifications as such, but he had learned to weld in his father’s scrap metal yard and had undertaken a farm welding course when he was 15 years old and was undertaking a further welding course. He regarded himself as a competent welder.
Brett Rowe gave evidence that he started and finished each day at K & T’s premises in Somerton but spent the remainder of the day at the applicant’s site working as directed by Mr Spence. K & T provided some of the equipment needed to undertake the job and the balance was provided by Mr Spence. He said that when he first arrived at the applicant’s site, Mr Spence showed him around but there was no induction as such into the workplace domestic work requirements and he was not provided with any written ‘On-site safety procedure’. He had difficulty reading.[2]
[2]During cross-examination counsel for the [Appellant] raised the point that Mr Rowe had ‘some minor – or some difficulties in reading’ to which Mr Rowe replied (yes, I do.)
His first job at the applicant’s site was to work with another K & T employee, 21 year old Sean Williams, to cut rails out of the inside of a large pine treatment tank and replace them. He said that he asked Mr Spence whether green residue inside the tank should be removed before beginning work and Mr Spence told him that there was no need to do so. He said that he and Mr Williams used a 9 inch grinder to cut the rails off, which created a lot of dust inside the tank and, although they were given a small domestic fan to blow the dust out of the tank, it did not work particularly well. Indeed, he said the dust was so bad that at times he and Mr Williams could not see each other inside the tank and had to stop cutting every now and again to allow the dust to settle. They were not provided with face masks and when he used the oxy-acetylene torch inside the tank it created smoke which he said left a horrible taste in his mouth. That work continued on for four or five days and, according to Mr Rowe, it was obvious to Mr Spence that he and Sean Williams were working inside the tank.
After completing the rails in that tank and in another three tanks, Mr Rowe said that he was instructed by Mr Spence to weld two tanks together to make one larger tank. One of those tanks was rusted out at the bottom and after shovelling rust and green residue out of it into a 44 gallon drum he cut the rusted base out of it. The other tank had green residue inside it but he did not remove the residue from it, because Mr Spence said there was no need to do so.
He said that he and Sean Williams discussed with Mr Spence how to join the two tanks together. One was of larger diameter than the other and it was not immediately apparent how the two could be joined. After talking about the problem to some friends overnight, however, Mr Rowe determined that it could be done by cutting out sections from the circumference of the top tank in order to reduce its diameter and then welding the remainder together and to the bottom tank to form one watertight vessel. He said that the next morning he told Mr Spence what he proposed and that it would require him working inside the tank to ensure that the welds were watertight and that Mr Spence instructed him to proceed.
He worked inside the tank welding for three days. The only way into the tank was through a small hatch of about 600 mm diameter. The welding created smoke but there was no problem until he began cutting the top off the bottom tank ready to be joined to the reduced diameter top tank. The fumes then caused him to become ill and throw up. He felt dizzy and his arms felt strange as if a knife were being dragged down them. At that point Mr Williams told him to get out of the tank, which he was able to do with difficultly, and he left the premises and went back to K & T. He sought medical attention and was advised that he had asthma. He refused to return to the work site and was off work for a week or two.
Sean Williams gave evidence which substantially confirmed the evidence given by Mr Rowe. He said that he took his work directions from Mr Spence, in the sense that Mr Spence would say what he wanted done, but that Mr Spence left it up to them as to how it was achieved. He said that he was not present when Brett Rowe had the discussion with Mr Spence about the method of joining the two tanks together and working inside the tank.
Mr Spence gave evidence in which he admitted that no hazard identification or risk assessment was made in relation to the welding together of the two tanks. He said that when it was ascertained that the two tanks were of different diameter he instructed Rowe and Williams not to worry about joining them and that he would order a plastic tank. But the next morning Rowe had come in and proposed a method for joining them although, according to Mr Spence, Mr Rowe did not explain all the details. In particular, according to Mr Spence, Mr Rowe did not say that he would have to weld inside the tank.
Mr Spence said that the next time he had a discussion with Mr Rowe was some three days later when he arrived back at the workplace. Williams was on top of the tank and Rowe was working inside the tank cutting out the top of the bottom tank. He said he asked them what they were doing and told them that he did not think it a good idea, but then began helping them remove pieces from the tank. He maintained, however, that he was only there for a short time and was not present while the cutting was going on.
He agreed that he had a discussion with Rowe about whether there was enough room inside the task for the mixing device to operate and that he had suggested that Rowe speak to Mr Williams because he knew the dimensions of the device. But he said that Rowe did not give any indication that he was feeling unwell and it was not until about six weeks later, when he phoned Mr Marshall at K & T to request that a safe working procedure be prepared, that he learned that Mr Rowe had been ill.
The grounds of appeal
Although there a large number of grounds of appeal, counsel’s submissions were so structured as to combine them into several groups and thus effectively to reduce the argument on behalf of the applicant to six principal contentions. It is convenient to deal with those in the order in which they were presented.
(i) Directions as to control – Grounds 4 and 5
The argument advanced under Grounds 4 and 5 was that the judge’s directions on the question of ‘control’ were inadequate. In particular, it was submitted that her Honour did not sufficiently relate the question of ‘control’ to the particular risk alleged, namely, the risk arising from welding inside the tank; and that her Honour did not sufficiently relate the law to the facts of the case, with the result that the jury were left without any real guidance as to:
a)‘what matters were required to be in the control of the applicant’; and
b)‘the facts on which the Crown relied to establish the relevant control’.
It was also contended that the judge’s directions involved an erroneous equation of ‘control’ over the workplace to control over the risk, and an erroneous equation of the duties of the applicant to those of an employer, without sufficiently emphasising the qualification set out in s 21(3)(b) of the Act.
We see no substance in those criticisms. In our view, the judge’s directions on control were anything but general and inadequate. They were precise and extensive, to the point of occupying more than 30 pages of transcript in which her Honour carefully combined concise statements of the law with expositions which are likely to have been of real benefit to the jury.
Secondly, the judge did relate the question of ‘control’ to the particular risk of welding inside the tank, and her Honour did so several times. Thus for example, there were the following parts of the charge:
But, the matter however does not end there. Once you are satisfied that Mr Rowe, Mr Williams and the other K&T employees who were sent to Waterhouse’s Woori Yallock site, are deemed or are capable of being deemed employees under the Act, the next – and this is the really critical issue – is in relation to the work being done on the vertical tank, whether the prosecution has satisfied you that Waterhouse had a duty as an employer to provide those people with a working environment that was safe and without risk to health.
What the … Act provides … is that the duties of an employer in relation to the obligation to provide and maintain a working environment which is safe … to the employees of that independent contractor, in this case including Mr Rowe and Mr Williams, [applies] in relation to matters over which the employer, that is Waterhouse, has control.
Let me repeat that. The duties imposes on an employer by the … Act in relation to the employer’s obligation to provide and maintain a safe working environment extend to employees of independent contractors in relation to matters over which the employer has control. So the key words there are, ‘in relation to matters over which it has control’.
Therefore, in order for the prosecution to satisfy you that Waterhouse owed a duty to Mr Rowe and to Mr Williams to provide them with a working environment which was safe and without risk to health, you must be satisfied that the welding work being done on the vertical tank was a matter over which Waterhouse had control.[3]
[3]Our emphasis.
They were followed by a comparison of possible scenarios designed to assist the jury in comprehending that the question of whether Waterhouse had control over the welding of the tanks was one of degree. That consisted of contrasting, at one end of the spectrum, the provision by K & T to the workers of a faulty grinder (being a matter over which Waterhouse would plainly have had no control) with, at the other end of the spectrum, ensuring that the drinking fountains at the plant were safe and that there were safe fire evacuation procedures in place (which, as her Honour explained, were plainly matters over which Waterhouse did have control). Then her Honour continued:
In the middle between the grinder at one end of the scale, the taps that provide the safe drinking water or the fire and evacuation procedures at the other end of the scale, there would be matters in which either or both of K & T or Waterhouse may have control, or matters over which neither of them has control.
In order for you to decide whether you are satisfied that Waterhouse was an employer for the purposes of this charge, you therefore must decide whether the works in respect of the welding of the two tanks together to make the vertical tank that were being performed by Mr Rowe and Mr Williams, were matters over which Waterhouse had control.[4]
[4]Our emphasis.
As we see it, the judge thereby made it perfectly clear to the jury that the matter over which the jury had to be satisfied Waterhouse had control was ‘the welding of the two tanks together to make the vertical tank … being performed by Mr Rowe and Mr Williams.’ Then her Honour added detailed directions on the range of legal and factual considerations to be kept in mind in ascertaining whether that was so.
Thirdly, the judge expressly directed the jury that the facts on which the Crown relied to establish the relevant control were as follows:
Here, the prosecution says that obligation that Waterhouse had to provide and maintain a safe working environment in respect of the work of welding the tanks, did not mean that Waterhouse could or should give directions to Mr Rowe and Mr Williams, or any other K & T employees about how to hold a welder. That is a welder’s expertise. But the prosecution argued it did not relieve Waterhouse of its responsibility to ensure when giving directions about tasks to be undertaken, that the working environment and the work practices were safe. Common sense would dictate, the prosecution argued, an appreciation that working inside those tanks was hazardous; had the potential to expose workers to risk and that was not a matter where welding expertise was required.
Fourthly, the judge did not equate control over the workplace to control over the risk or fail to emphasise the matters set out in s 21(3)(b) of the Act. So far as control is concerned, her Honour listed and expatiated upon no less than eight matters which she directed the jury could be taken into account in determining whether Waterhouse had control over the welding of the two tanks together. They were (1) that Mr Rowe and Mr Williams were on Waterhouse’s premises doing work for Waterhouse; (2) that practical control may be important; (3) that K & T was engaged as an expert or specialist in a field and that Mr Rowe and Mr Williams were themselves specialists in that field; (4) that there was a dispute on the evidence, which needed to be determined, as to whether K &T were engaged by Waterhouse to provide contract labour to work at Mr Spence’s direction; (5) that control need not be exclusive; (6) whether under the arrangements which obtained, Waterhouse had the right or Mr Rowe and Mr Williams accepted that Waterhouse had the right to give directions not to perform work in a particular way; (7) whether Waterhouse had effective control of that part of the premises in which was done the work of welding together the two tanks; and (8) whether Mr Rowe and Mr Williams were brought onto the premises for the purposes of Waterhouse’s enterprise. There was no suggestion of equating control of the premises to control of the risk. Her Honour simply made the point, correctly that one of the factors to be taken into account in determining whether there was control of the welding operation was whether there was control of that part of the premises in which it was being conducted.[5]
[5]See and compare Moore v Adelaide Brighton Cement Ltd [2004] SAIRC 78[6].
Lastly, the complaint about failing to emphasise the conditions imposed by s 21(3)(b)[6] is misplaced. As has been seen, the judge made it plain to the jury that:
In order for you to decide whether you are satisfied that Waterhouse was an employer for the purposes of this charge, you therefore must decide whether the works in respect of the welding of the two tanks together to make the vertical tank that were being performed by Mr Rowe and Mr Williams, were matters over which Waterhouse had control.[7]
[6]S 21(3) provides that:
For the purposes of sub-sections (1) and (2) –
a) ‘employee’ includes and independent contractor engaged by an employer and any employees of the independent contractor; and
b) the duties of an employer under those sub-sections extend to such an independent contractor and the independent contractor’s employees, in relation to matters over which the employer –
i.has control; or
ii.would have had control but for any agreement between the employer and the independent contractor to the contrary.
[7]See [21] above.
(ii) Prejudicial Material – Ground 3
Under cover of Ground 3, counsel for the applicant contended that the judge erred in refusing to strike out Particular (b) under Count 1 and Particulars (b), (i) and (k) under Count 3 and in admitting evidence pertinent to the toxicity of deposits in the tanks. The particulars in question were that:
1) Under Count 1:
(b)failed to provide an adequate risk assessment of welding two treatment tanks within a confined space, including testing the sludge/residue contained in the tanks for content and possible toxicity.
2)Under Count 3:
(b)failed to conduct any risk assessment of welding two treatment tanks within a confined space, including testing the sludge/residue contained in the tanks for contents and possible toxicity;
…
(i)failed to identify the hazards and risks associated with the welding together of two tanks that may have previously contained a toxic substance; and
…
(k) failed to inform persons other than its employees as to the previous contents of the tanks that were being welded together.
Before the jury was empanelled, the prosecutor told the judge that the Crown would not be alleging that Mr Rowe or Mr Williams had been poisoned as a result of their work on the tanks but that nonetheless the Crown still sought to tender in evidence documents which had come from the possession of the applicant which indicated that there had been some sort of copper chrome arsenate in the tanks on which Mr Rowe and Mr Williams had worked.
Defence counsel took exception to that course, on the basis, as he submitted, that the only probative value of the documents was as to poisoning, and he contended that the particulars about which complaint is now made should be struck out, because:
Again, as I understand it, the case was reduced to the simple notion that in substance the Crown were alleging that there was a problem - the essential problem was conducting welding within these [steel] tanks which, as I understand the Crown case, constitutes a confined space. The allegations referrable to toxicity, it is submitted, are simply – well they had nothing to do with the Crown case as I now understand it, and in a sense they are embarrassing certainly, and they’re prejudicial, clearly, to my client. As would be the admissibility of [the materials].
The prosecutor resisted the objection, thus:
… these are old tanks. … There’s evidence that they had some sort of significant chemical, arsenic, in them. Surely, that must be relevant to someone who is going to be welding – if you’re going to have people welding tanks and doing works on those tanks.
So that ‘s relevant to the need for a hazard identification, and indeed, it’s also – which the code of practice requires – hazard identification is throughout the Act and Regulation mentioned frequently, or it’s required under the regulations.
The judge ruled that the particulars should not be struck out and that the evidence was admissible:
I do not consider that particular (b) to Count 1 or particulars (b), (i) or (k) to Count 3 are embarrassing or for any other reason should be struck out. Allegations in relation to toxicity are matters which relate to the general context in which the case is to be presented. While it is clearly, as I have been told repeatedly, not a poisoning case, one of the relevant surrounding circumstances is the potential for presence of toxic materials and the relevance of that to performing hazard assessments, risk assessments and to having material safety data in existence in respect of any chemicals contained in the tasks that were being worked on.
… So the evidence in relation to chemicals or what was in the sludge, what was in the tanks, material data safety sheets and the like, are relevant details going to the charges as they relate to the safe working system in respect of the tanks and as they relate to the provision of information, instruction training and supervision in respect of the tanks and in relation to the exposure to risks to health or safety arising from the conduct of the undertaking during those days. So that is, as I understand, how that evidence is and can be used.
Counsel for the applicant submitted before us that the judge erred in so ruling. In counsel’s submission the retention of particular (b) to Count 1 and particulars (b), (i) and (k) to Count 3 was capable of erroneously suggesting to the jury that one of the matters to which they might have regard in determining whether the charges were proved was whether the applicant had control over the risk of poisoning from CCA concentrate, and that without appropriate directions, which in his submission were not given, the evidence of toxicity was calculated to lead the jury to engage in impermissible propensity reasoning.
In our view, the judge was right to rule as her Honour did. The particulars were capable of sustaining the charges preferred and the evidence was relevant for the reason submitted by the prosecutor. The nature of the sludge or deposits inside the tanks was something of which the applicant had particular knowledge or the means of acquiring knowledge, and about which the workers knew very little. It was, therefore, something against the risks of which the applicant was bound to guard so far as practicable.[8]
[8]R v ACR Roofing Pty Ltd (2004) 11 VR 187, 213 [68]-[69].
The Crown’s case was put on the basis that, although it did not essay the task of proving that Mr Rowe was injured, there was an evident risk of toxic chemicals in the tanks capable of causing injuries to workers like Mr Rowe. The risk of toxic chemicals inside the tanks thus informed the nature and scope of measures necessary for the applicant to undertake in order to comply with its obligations under the Act. The applicant contravened the Act by allowing Mr Rowe to weld inside the tank without first taking reasonably practicable safety measures and providing information, instruction, training and supervision directed to the existence of the risk.
Nor do we see that there was any risk of propensity reasoning which required a particular warning. The particulars and evidence related to the offences charged, not other offences or transgressions.
In oral argument, counsel for the applicant advanced an alternative argument that there was no evidential basis for the existence of a risk of toxicity sufficient to necessitate investigation and assessment. In his submission, the highest the evidence went was that the bottom tank had once contained some CCA but had been ‘purged’; that the top tank had only ever been used as a water tank with which to water vegetables; and that, so far as Mr Spence was concerned, there was no residual copper chrome arsenate in the deposits on either tank. In those circumstances, counsel submitted, the judge should not have left the applicant’s failure to test for toxicity as something which it was open for the jury to find was a breach of the Act.
We do not accept that argument. Mr Rowe’s evidence in chief was that both tanks bore deposits of unknown composition:
Now, the two tanks that you had to join together, can you describe their inside? - - - One of them was all rusted out, the one we had to put on top we cut in half or we cut the bottom of it because it was all rusty. That had all crap inside it. We punched a hole in the bottom of it because it was all rusty and Sean [Williams] cleaned it all out before we cut it.
What did he have to – all right, cleaned it, and what did he clean out? - - - Just rust, scale and this green crap, like was inside the other tanks.
And that was just to cut the bottom half of it, it was so old and rusty you got rid of the bottom half of that tank, did you? - - - Yes, that’s right, yes.
…
So the top half had all this green crap, to use your words, is that so? - - - Yes, yes. Just shovelled it all down to the bottom of the tank and then Sean shovelled it up into a 44 - - -
- - - gallon drum…
…
What about the lower half that you were going to weld onto the top half, what was the inside of that like, do you remember? - - - Yes, it had a bit of crap in there and stuff like that.
Pardon? - - - Had a bit of stuff in there, yes, the bottom of it, but we didn’t bother cleaning that one out.
What sort of stuff? - - - Just green like scale on the bottom of it, but we didn’t bother cleaning it out.
He gave the same evidence in cross-examination:
... I remember talking to Dave [Spence] about it and he said that - because we asked him the same day about what was in the tanks, and he said nothing to worry about. Don’t worry about it. The outside was sand blasted but the inside wasn’t and he said don’t worry about it, you’re right. (Indistinct) for it.
…We took his word for it. You know, that’s why we went in and did it. We asked for the house fan – we asked for a fan and we got provided with a house fan.
I suggest to you that very early in the piece, in terms of a general discussion, you discussed the concept of this material that was used in order to treat the pine. You had a general discussion about whether or not it was dangerous to employees that came in contact with it. Can you recall that? - - - Yes, we asked him what stuff was on the wall, whether it was dangerous or not, and he said he’d worked with it all his life and nothing wrong with it.
…
You don’t pretend to recall exact details of any of these conversation you had with Mr Spence I suggest? - - - I remember that conversation because I thought to myself – I thought that there might have been something wrong with it but he gave us his word it was all right.
…
… I remember talking to him about it – asking whether the inside of the tank should be sand blasted or not, and he said don’t worry about it, grind it off, there’s nothing to worry about. I remember that quite clearly.
I suggest to you that what he said to you in the context of a general discussion early when you went out there, that there had been studies done on workers that work in this industry, and it showed that there were no ill effects to workers who were working with the stuff on a full time basis. Do you recall him saying words to that effect? - - - He said his brother was testing it all the time and there was nothing wrong with him.
…
In any event you made no complaint at all to Mr Spence, or indeed anybody associated with the Waterhouse business, about the conditions that you were working under when you were working in the large shed? - - - No.
You made no complaint to Mr Marshall on any - - - ? - - - We just asked for a fan and we got given that house fan and, yes, look, we were sent there to do a job. We were told there’s nothing wrong with it, so you do it.
But I suggest to you that - - - ? - - -Yes, I did, mate, you need the money you do what you’re told to do, you don’t question your boss if they tell you it’s all right, or the person you’re working for.
…
Is it your evidence, Mr Rowe, that you never said anything by way of complaint to Mr Marshall about the conditions you were working under? - - - No, because Dave’s told us it was all right, so you take the bloke’s word for it.
Mr Spence said that the tanks shown in the photographs tendered in evidence (which, on one view of his evidence, included the bottom half of the vertical tank on which Mr Rowe worked) had been purged before being brought to site:
In answer to your question, our chemical company provided us with a service in this case [wherein] they came and cleaned and purged all those tanks, so that in fact the site was, well, from a remedial perspective on the existing site we had an obligation to leave it clean, and also of course the solution that’s used in the treating of timber is quite expensive and it was in our best interests to recover absolutely every last bit of it.
He also deposed that the bottom half tank was made of stainless steel and consequently was resistant to chemical coagulation of the kind which affects mild steel tanks:
Well, the – stainless steel finish the – any of the chemicals – because copper chrome and arsenate are – all consist of heavy metals, as I understand them. What happens is sometimes there’s some settling and some fall out and a little bit of coagulant on the walls of steel tanks. Whereas that doesn’t occur when the tank’s stainless steel. It’s similar to, I guess, any other stainless steel appliance or whatever the case may be, you know - - -
He was of the opinion, therefore, that there was no residual copper chrome arsenate in the green portion of what ultimately became the tank which Mr Rowe welded together:
In any event, more particularly, from your perspective, as far as you were concerned, was there any residual copper chrome arsenate in that green portion of what ultimately became the vertical tank? - - - Absolutely not.
The trouble with all that, however, was that, so far as appeared from the evidence, it was not possible to say what had been done by way of ‘purging’. All that Mr Spence said about the detail of it was this:
So there’s always, if you like, that unusable amount of chemical that needs to flood that vessel that’s left over. So we used it down as far as we could and then we had to undertake the purging process of both the mixing tank and the vertical storage tanks, prior to shifting them.
Apparently, Mr Spence had no relevant scientific qualifications. He gave his occupation only as a company director. Nor was there any evidence aliunde of any scientific knowledge or testing on which to base his opinion. In the circumstances, the jury might well have been inclined to reject his view. More pointedly still, the only evidence as to the top half of the tank was that it had previously been used by someone else as a water tank so that, other than that, its provenance and chemical composition remained apparently unknown and unexplored:
Now you say the top half of the vertical tank had been, prior to being placed on top of the green part, had been a water tank only? - - - Water storage, yes, yes, the – the previous proprietor of H. Waterhouse & Son, it was actually his property it was set up on and he was watering his vegie garden thing up the back, so – but he said that of course that was one of the things that we acquired when we purchased the place, so I took it.
As counsel for the respondent reminded us, it is important to keep in mind that s 21 of the Act was designed to lay down overriding statutory duties of care which make the preservation of safety and health at work the continuous legal and social responsibility of all those who have control over the conditions and circumstances in which work is performed.[9] In our view, once the facts of this case are seen in that light, the potential for a jury properly to have been satisfied of the applicant’s guilt becomes obvious. So far from there being no basis on which to leave to the jury the possibility that the applicant was bound and failed to take steps to test the tanks before allowing Mr Rowe and Mr Williams to work on and inside them, there was a strong case to conclude that the applicant had ignored or overlooked a need for tests which to a reasonable employer should have been obvious.
[9]R v ACR Roofing Pty Ltd (2004) 11 VR 187, 203 [44].
Ground 1 – Privilege against incrimination
At relevant times, s 39 of the Act provided inter alia that :
An inspector may for the purposes of the execution of this Act or the regulations –
(a) …
…
(i) require the production of examine and take copies of any document or part of any document
…
Section 42(1)(c) provided that
Any person who –
…
(c) fails to produce any document required under this Act or the regulations by an inspector
shall be guilty of an offence.
Section 40(8) of the Act provided, however, that:
No person shall be required under section 39 to answer any question or give any evidence tending to self incrimination.
Before the applicant was charged with the offences an inspector of WorkSafe Victoria sent a notice to the applicant under s 39 of the Act requiring production of documents, and warning that:
Under section 42(1)(c) of this Act, any person who fails to produce any document required under this Act or the regulations by an inspector shall be guilty of an offence. In the case of a company, the offence carries a penalty of to less than $5,000 nor more than $250,000. In any other case, the offence carries a penalty of not less than $1,000 nor more than $50,000 or imprisonment for not more than 5 years or both.
Pursuant to that notice, the applicant produced to the inspector a Material Safety Data Sheet for Impretect C.S CCA Concentrate (60%) and a ‘May procedures’ document, both of which were relevant to whether the applicant had control of the tank welding in a relevant sense, and both of which were likely to be detrimental to the applicant’s defence of the charges.
The applicant contended below that the documents were the subject of privilege against self-incrimination and thus should not be tendered in evidence. The judge, however, ruled against that submission and the nub of Ground 1 is that her Honour was wrong to do so.
Counsel for the applicant argued before us that, because of s 40(8), the applicant was not required to produce the documents and that, because the notice from the inspector made no reference to the protection afforded by s 40(8) and threatened the consequences provided for in s 42(1)(c), the applicant should not be taken to have waived the protection of s 40(8). In counsel’s submission, the documents were inadmissible or alternatively ought not to have been received.
If the applicant had been a natural person, it might have resisted production of the documents on the ground of the common law privilege against self-incrimination.[10] But the common law privilege against self-incrimination does not and never did apply to corporations in this country, even though for some time it was widely assumed that it did.[11] Consequently, if the applicant had sought to resist production of the documents on the basis of the common law privilege against self- incrimination, the claim would have failed.[12]
[10]Sorby v The Commonwealth (1983) 152 CLR 281, 288 (Gibbs CJ) and 310 (Mason, Wilson and Dawson JJ); Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, 335; Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs [1984] VR 137, 152. In England, the position is different: Attorney General’s Reference (No 7 of 2000) [2001] 1WLR 1879; C plc v P (Attorney General intervening) [2008] Ch 1; and see Heydon, Cross on Evidence, Australian Edition, [25090]
[11]See, for example, Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, 335; Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs [1984] VR 137, 152.
[12]Environment Protection Authority v Caltex Refining Co Pty Ltd (1992) 178 CLR 477.
Despite that, however, counsel submitted that, because s 38 of the Interpretation of Legislation Act 1958 provides that, unless the contrary intention appears, ‘person’ includes a body politic or corporate as well as an individual, s 38 should be taken to have extended the privilege to corporations like the applicant.
We do not accept that submission. It is highly improbable that Parliament intended to expand the scope of the privilege in that fashion. But even if s 40(8) did apply to corporations in the manner contended, it did not provide that the persons to whom it referred should have the benefit of the privilege against self-incrimination, but only that they should not be required to answer any question or give any evidence tending to self incrimination. The notice under s 39(i) did not require the applicant to answer any question or give any evidence; simply to produce documents, and that was all it did.
It follows, in our view, that there was nothing wrong or unfair about the fact that the notice did not refer to s 40(8) or that it threatened the consequences of failure to comply which were specified in s 42(1)(c). The applicant was bound to produce the documents and the judge was right to rule that they could be tendered in evidence against the applicant.
Ground 2 – Applicability of Regulations
Under Ground 2, counsel for the applicant contended that the judge erred in treating the Regulations made under the Act as applicable to the applicant and thus in directing the jury that one of the considerations to which they might have regard when determining whether the applicant had done what was reasonably practicable for the purposes of s 21(2)(a) of the Act was the obligations imposed on employers by the Occupational Health and Safety (Confined Spaces) Regulations 1996.
In substance, the argument was that, since there is no definition of ‘employer’ in the Regulations, it is to be assumed that ‘employer’ in the Regulations has the same meaning as it is given in the Act, and it is defined in s 4 of the Act to mean ‘a person who employs one or more other persons under contracts of employment or under contracts of training.’ It followed, it was said, that the applicant was not an employer of Mr Rowe or Mr Williams for the purposes of the Regulations and, therefore, that it was wrong of the judge to suggest that the Regulations applied.
We do not accept that argument. As has been seen, s 21(2) imposed upon an employer an obligation to provide and maintain so far as is practicable for employees a working environment that is safe and without risks to health. One of the matters to which one might properly have had regard in determining whether an employer had discharged that obligation was whether it had complied with the Regulations. Regulation 14 provided that an employer must ensure that all hazards associated with work in a confined space are identified, having regard to the state of knowledge about hazards. ‘Work in a confined space’ was defined in Regulation 4(2)(a) to mean work in the space by an employee and as including the entry to and exit from the space by the employee. Consequently, in determining whether an employer had complied with the obligation under s 21(2) to provide and maintain so far as is practicable for employees a working environment that was safe and without risk to the health of the employees, one of the matters to which one might properly have had regard was whether with respect to an employee working in a confined space the employer had ensured that all hazards associated within the confined space were identified having regard to the state of knowledge about hazards.
It is true that the applicant was not an ‘employer’ within the meaning of s 4(1) of the Act, and that Mr Rowe and Mr Williams were not its ‘employees’. But as has been seen, s 21(3) provided that the duties of an employer under ss 21(1) and (2) extended to the employees of independent contractors in relation to matters over which the employer had control. It follows, in relation to such matters, that the applicant was subject to the same obligations under s 21(1) towards Mr Rowe and Mr Williams as it would have been if they had been the applicant’s employees. And thus it follows that one of the matters which might properly be taken into account in determining whether the applicant discharged those obligations towards Mr Rowe and Mr Williams was whether it ensured that all hazards associated with work in a confined space had been identified, having regard to the state of knowledge about hazards.
Ground 6 – Answer to jury question
After the judge had concluded her charge, the jury asked two questions, of which the second (which was in respect of count 2) was as follows:
Do all of your elements, information, instruction, training and supervision. Does a company need to be in breach of all four areas or only one or more areas?
After hearing submissions from counsel, the judge answered that questions as follows:
Your second question was whether all of the four different things that are listed in the body of Count 2 in that first, what I call the first particularisation of the way the breach of the failure to provide a safe working environment, and whether all four of those aspects need to be established. And you have already put it the other way round, ‘does the company need to be in breach of all four areas or only one or more?’ Let me put it this way. The company has an obligation to provide all four of those things. To provide information, instruction, training and supervision. And that, as I have told you earlier, is that absolute obligation to so so.
The complaint made under Ground 6 is that the sentence ‘And that, as I have told you earlier, is that absolute obligation to do so’ constituted a misdirection which would have led the jury to think that the obligation to provide information, instruction, training and supervision was an absolute obligation as opposed to one to do so ‘so far as is practicable’ in relation to matters over which the applicant had control.
Read in isolation, that might appear to be so. But read in context, it will be seen that it was not so. The judge had previously instructed the jury in great detail and at considerable length that the obligation imposed by s 21(1) was one to act only so far as practicable and that it applied in relation to Mr Rowe and Mr Williams only if the jury were satisfied beyond reasonable doubt that the welding of the tanks was a matter over which the applicant had control in the sense which was pertinent to the Act.
Further, in the course of redirecting the jury, immediately before answering the questions, the judge said this:
Let me make it quite clear and you’ll see this yourselves by reading carefully the wording of the charges. The element or the requirement of, so far as is practicable, appears twice in the wording of Count 1. First, in the general wording, that is, the obligation of the employer to provide and maintain, so far as is practicable, a working environment that is safe and without risk to health. And then in the way in which it is said that that requirement was breached for Count 1, namely, by failing to provide and maintain so far as was practicable, plant, namely, tanks, and systems of work, that were safe and without risk to health. So it appears twice there.
It appears only once in Count 2, in the lead-in words, in the first formulation of the charge. So, the requirement in Count 2, the charge is the failure to, provide and maintain so far as is practicable, a working environment that is safe and without risk to health. That is the only time it appears in that charge. And this is where the absolute, not qualified part of this charge comes in, by the absolute obligation to ensure that every employee is adequately informed, instructed, trained and supervised, so as to enable the employee to work in a manner that is safe.
Her Honour then added that:
The other thing that I just wanted to clarify is again coming back to the issue of control, I said to you, and this applies to both Count 1 and Count 2, one of the matters I went through that I said you had to consider in making a determination about control, one of the directions was [this], whether the employer has some control over what the employees will do depend on the nature of the work being performed by the employees of the contractor, and in particular whether the work requires a particular specialty or expertise which those employees have.
All things considered, we do not accept that there was a realistic possibility of the jury failing to appreciate that the charges were conditioned by the limits of reasonable practicability, in the sense which the judge had explained, or that the applicant’s obligations in respect of Mr Rowe and Mr Williams were limited to matters over which the applicant had control.
Ground 7 – Directions as to practicability
The complaint under Ground 7 is that the judge did not sufficiently stress that the words ‘so far as is practicable’ formed part of the substantive offence which had to be proved beyond reasonable doubt.[13] In particular, counsel for the applicant submitted, the judge did not ever direct the jury that they had to be satisfied beyond reasonable doubt that it was practicable to provide and maintain a working environment that eliminated the risk the subject of Count 1. Instead, the judge directed the jury that:
you must again ask yourself what could have been done or should have been done in the way of information, instruction, training or supervision to eliminate or reduce so far as was practicable the risk to health and safety involved in the work that was being done on the vertical tank by the K & T workers’.
It was submitted that her Honour thereby effectively reversed the onus of proof in relation to the question of practicability.
[13]Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249, 251 (Brennan J).
Counsel for the applicant also complained that the judge failed to relate the question of ‘practicability’ to the facts of the case and gave the jury no real guidance as to the facts on which the Crown relied to establish the failure of the applicant to provide a working environment that was as safe so far ‘as is practicable’.
In our view, that submission is devoid of merit. To begin with, the judge stressed more than a dozen times that the obligation imposed on an employer to provide a safe system of work was qualified by the constraints of what was practicable. Thus:
1)…it is the elements of those offences as I will explain them to you after lunch, that you have got to be satisfied of beyond reasonable doubt…
There is some repetition in the wording; the phrases, ‘so far as is practicable’ and ‘safe and without risks to health’ both appear twice in the body of the charge. They qualify the general statement of the charge and the explanation of how the actual breach is said to have been committed…
2)Remember it is the elements of which you have got to be satisfied beyond reasonable doubt, if you are going to convict. …That is, the failure by Waterhouse as an employer to provide so far as is practicable, that safe working environment to its employees…
3)The duty of an employer to provide and maintain, so far as is practicable, a safe working environment, is a duty that cannot be delegated…
4)It is my duty to instruct you as I have done as to what might or might not be involved in a system of work and in elimination or reduction so far as is practicable of risk. But it is your duty to consider what systems were in place or were not in place, and what could have been in place in this particular case in order to eliminate or reduce risk so far as was practicable.
5)…the duty of the employer is qualified by those words, ‘so far as is practicable’. And I want to now to take you to that.
What does ‘practicable’ mean?...
6)Ultimately it is for you to decide on the whole of the evidence whether you are satisfied beyond reasonable doubt that Waterhouse was an employer within that extended definition … If you are so satisfied and you are satisfied that it failed to do all that was reasonably practicable in relation to providing a work environment that was safe and without risk to health, and that it failed so far as was reasonably practical to provide safe plant or safe systems of work in one or more of those ways alleged, then you will find it guilty. If however, you are not satisfied…that nonetheless it did not fail so far as was practicable, to maintain or to provide and maintain a working environment that was safe and without risk to health, then you will find it not guilty.
7)This is a charge of failure to provide and maintain so far as is practicable, a working environment that was safe and without risk to health.
8)Let me then come to the third element of Count 2, that is the failure to provide a working environment that was, so far as was practicable, safe and without risk to health – that is the general terminology again. Note the rider in there, ‘so far as was practicable’.
9)So although when assessing whether you are satisfied or not of the guilt of the accused on Count 2, you must consider whether you are satisfied that the accused company failed to provide and maintain so far as was practicable a safe working environment by the failure to provide the instruction et cetera,…
10)In considering whether Waterhouse has so far as was practicable failed to provide and maintain a safe working environment in this context, you must again ask yourself… I will not unless you want me to, repeat all of the instructions that I gave you in respect of Count 1, in relation to ‘so far as is practicable’…
11)Again, in the end, it is a matter for you on all of the evidence, whether you are satisfied whether all or any of those particulars have been made out. If one or more of them have been established to your satisfaction, and you are satisfied [of] the other elements, that is in particular in relation to control and in relation to the practicability qualification, then you will find the accused company guilty. If you are not so satisfied of any of those elements, then you will and must find the accused company not guilty.
12)Next, you have got to be satisfied that Waterhouse had failed to ensure, so far as was practicable, that persons other than employees were not exposed to those risks, and what I have said about practicability applies here to those four parts of Practicable: A, B, C and D apply as much to Count 3 as they apply to Counts 1 and 2. Again, insofar as the particulars are concerned, it is not necessary for all of the particulars to be established. If you are satisfied that even only one of those particulars has been made out and that that therefore satisfies you that there was in one of those respects, a failure to ensure so far as was practicable, that persons other than employees were not exposed to risk of health… However, if you are not satisfied of any one of those particulars… that means one of those elements of the offences is not made out … and you will have to find Waterhouse not guilty.
13)The elements of the offence are the failure to provide the working environment that is safe without risk to health. In Count 1, by the failure to provide plant, namely, the tank and equipment that was, so far as practicable, safe and without risk to health. In Count 2 the elements are the failure to provide, so far as practicable, the working environment that was safe and without risk to health… They are the elements.
14)It is important first to make sure you understand the qualification so far as is practicable, as it appears twice in Count 1 and only once in Count 2…
Secondly, as can be seen from what is set out above, the judge repeatedly told the jury in terms that in order to convict they had to be satisfied beyond reasonable doubt, among other things, that the applicant had failed to do what was reasonably practicable to provide and maintain a working environment that was safe and without risk to health.
Thirdly, the judge’s direction to the jury that they had to ask themselves again what could have been done or should have been done in the way of information, instruction, training or supervision to eliminate or reduce so far as was practicable, was a proper and appropriate method of explaining to the jury that the question of what was practicable was for them a factual assessment having regard to the several criteria of practicability through which the judge had just then gone at great length and in great detail.
Fourthly, the judge did not thereby or at any other stage of the charge reverse the onus of proof. To the contrary, she repeatedly stressed that the burden of proof was upon the Crown to satisfy the jury of each of the elements of the offences and if they were not so satisfied of any one element they were bound to acquit. As the judge put it on one of the many occasions on which she stressed that the burden of proof was upon the Crown:
Let me just conclude. Onus or proof starts, stays and remains with the prosecution. The prosecution must satisfy you of the guilt of the accused on all of the evidence. It must satisfy you beyond reasonable doubt…
Fifthly, the judge gave the jury explicit detailed guidance as to the facts on which the Crown relied to establish the failure of the applicant to provide a working environment that was as safe so far as practicable. It is too lengthy to set out here in full. Suffice it to say that it ran for more than nine pages of transcript and incorporated a precise outline of the criteria of practicability, each of the facts relied upon by the Crown to satisfy those criteria and the facts and contentions advanced on behalf of the applicant as to why in each case the criterion was not met. With respect, the judge could not usefully have done any more than she did. The charge was exemplary for its attention to detail.
Ground 8 – Selective directions in relation to Mr Marshall’s evidence
Finally, under Ground 8, counsel for the applicant submitted that the judge had failed to direct the jury sufficiently or at all in relation to the nature of the instructions and directions which must be established to place control of the risk on the applicant.
We do not accept that submission either. As we noticed earlier in this judgment, the judge expressly directed the jury that whether an occupier has control over the employees of a specialist contractor depends upon the nature of the work being performed and, therefore, while it was not suggested that the applicant could or should have given Mr Rowe and Mr Williams instructions on their welding technique, the Crown case was that the applicant remained liable to ensure that the working environment and the work practices were safe. As the judge said, the Crown’s case was based upon the common sense contention that to instruct Mr Rowe and Mr Williams to do the work on the tanks which they did, knowing that they were working inside the tanks, was hazardous and had the potential to expose them to risks which for the applicant, should have been obvious.
Counsel for the applicant further submitted that the judge’s directions as to whether Mr Spence had given any directions to Mr Rowe were unbalanced, in that her Honour did not refer to:
· Evidence in chief given by Mr Marshall of K & T;
· The fact that the Victorian Workcover Authority had prosecuted K & T in respect of an offence which included the risk to health and safety that was subject of Counts 1 and 2 in the presentment filed against the applicant.
We reject that submission. In the course of directing the jury on the question of whether the applicant had control of the operations on which Mr Rowe and Mr Williams were engaged, the judge referred to evidence given by Mr Marshall in cross-examination that he had admitted to WorkCover inspectors that K & T were providing labour to the applicant to work at Mr Spence’s direction. Her Honour made the point that the concession had been extracted in the course of cross-examination. It is true that the judge did not refer to some of the details to which Mr Marshall deposed in evidence in chief. But there was nothing inconsistent between what Mr Marshall said in cross-examination and what he said in chief. It is just that what he said in cross-examination went further. In those circumstances, there was no particular reason for her Honour to refer to the evidence in chief and defence counsel did not suggest that she should. It is a point which appears to have been created for the purposes of the appeal.
Nor do we see any particular reason for the judge to have referred to the fact that K & T had pleaded guilty and been convicted of offences arising out of the incident. There was nothing inconsistent between that and the applicant’s alleged contraventions of the Act. It was a case of shared control as the judge explained. As with the last point, too, no exception was taken.
Conclusion and orders
In the result, the application for leave to appeal against conviction will be dismissed.
- - -
2