Roche v Malavoca Pty Ltd
[2007] WASC 1
•9 JANUARY 2007
ROCHE -v- MALAVOCA PTY LTD [2007] WASC 1
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 1 | |
| Case No: | SJA:1061/2006 | 2 NOVEMBER 2006 | |
| Coram: | SIMMONDS J | 8/01/07 | |
| 40 | Judgment Part: | 1 of 1 | |
| Result: | Appeal upheld | ||
| B | |||
| PDF Version |
| Parties: | ANDREW MARY ROCHE MALAVOCA PTY LTD |
Catchwords: | Criminal law Appeal from acquittal Occupational Safety and Health Act 1984 (WA), s 19(7) Safe system of work Whether measures described in particulars of charge were reasonably practicable Criminal law Appeal against costs Costs in excess of scale Complexity of matter |
Legislation: | Criminal Appeals Act 2004 (WA), s 9, s 14 Occupational Safety and Health Act 1984 (WA), s 3, s 19(1), s 19(6), s 19(7), s 19(9) |
Case References: | Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 Environmental Protection Authority v Sydney Water Corporation Ltd (1997) 98 LGERA 361 Garrett v Nicholson (1999) 21 WAR 226 Holmes v R E Spence & Co Pty Ltd [1992] 5 VIR 119 MacCarron v Coles Supermarkets Australia Pty Ltd (2001) 23 WAR 355 Nelson v John Lysaght (Australia) Limited (1974) 132 CLR 201 Nevermann v The Queen (1989) 43 A Crim R 347 R v Australian Char Pty Ltd [1999] 3 VR 834 Tenix Defence Pty Ltd v MacCarron [2003] WASCA 165 Western Power Corporation v Shepherd [2004] WASCA 233 Wyong Shire Council v Shirt (1979) 146 CLR 40 Hamersley Iron Pty Ltd v Robertson, unreported; SCt of WA (Steytler J); Library No 980573; 2 October 1998 Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100 WorkCover Authority of New South Wales v Maine Lighting Pty Ltd (1995) 100 IR 248 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
MALAVOCA PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES' COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE M D WHEELER
File No : JO 6104 of 2004
Catchwords:
Criminal law - Appeal from acquittal - Occupational Safety and Health Act 1984 (WA), s 19(7) - Safe system of work - Whether measures described in particulars of charge were reasonably practicable
Criminal law - Appeal against costs - Costs in excess of scale - Complexity of matter
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA), s 9, s 14
Occupational Safety and Health Act 1984 (WA), s 3, s 19(1), s 19(6), s 19(7), s 19(9)
Result:
Appeal upheld
Category: B
Representation:
Counsel:
Appellant : Mr D J Matthews
Respondent : Mr M H Zilko SC
Solicitors:
Appellant : State Solicitor's Office
Respondent : HFM Legal
Case(s) referred to in judgment(s):
Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249
Environmental Protection Authority v Sydney Water Corporation Ltd (1997) 98 LGERA 361
Garrett v Nicholson (1999) 21 WAR 226
Holmes v R E Spence & Co Pty Ltd [1992] 5 VIR 119
MacCarron v Coles Supermarkets Australia Pty Ltd (2001) 23 WAR 355
Nelson v John Lysaght (Australia) Limited (1974) 132 CLR 201
Nevermann v The Queen (1989) 43 A Crim R 347
R v Australian Char Pty Ltd [1999] 3 VR 834
Tenix Defence Pty Ltd v MacCarron [2003] WASCA 165
Western Power Corporation v Shepherd [2004] WASCA 233
Wyong Shire Council v Shirt (1979) 146 CLR 40
(Page 3)
Case(s) also cited:
Hamersley Iron Pty Ltd v Robertson, unreported; SCt of WA (Steytler J); Library No 980573; 2 October 1998
Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100
WorkCover Authority of New South Wales v Maine Lighting Pty Ltd (1995) 100 IR 248
(Page 4)
- SIMMONDS J:
Introduction
1 This is an appeal against the decision of a Magistrate dismissing a charge against the respondent of an offence under Occupational Safety and Health Act 1984 (WA) (the "Occupational Safety and HealthAct"), as it stood at the time of the events in question. The offence, under the Occupational Safety and Health Act, s 19(7), was an alleged contravention, causing death, of the requirement, in s 19(1), to have a working environment in which, so far as practicable, employees were not exposed to hazards.
2 The grounds of appeal were two.
3 One ground was that the Magistrate erred in finding none of the measures referred to in the ground were practicable.
4 The other ground was that the Magistrate erred in deciding for the purposes of his order as to costs that the matter was complex for the purposes of par 7 of the Schedule to the Legal Practitioners (Official Prosecutions) (Defendants' Costs) Determination 2004 ("the Costs Determination").
5 I begin by setting out the procedural framework to this appeal and the substantive framework to the first ground. I then briefly describe the other background to the appeal, including the decision of the learned Magistrate, before I consider the two grounds of appeal.
The procedural framework to this appeal
6 This appeal was brought pursuant to leave granted by his Honour Justice McKechnie on 27 July 2006 under s 9 of the Criminal Appeals Act 2004 (WA).
7 On an appeal pursuant to such leave the Court has a broad power to make orders (s 14), and may make one or more of the following orders, among others:
"(a) dismiss the appeal;
(b) allow the appeal;
(c) set aside or vary the decision of the court of summary jurisdiction and sentence imposed, order made or thing done as a result of the decision;
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- (d) substitute a decision that should have been made by the court of summary jurisdiction;
(e) order the case to be dealt with again by the court of summary jurisdiction, with or without orders to that court –
(i) as to how or by whom it is to be constituted;
(ii) as to how it must deal with the case;
make any order under the Magistrates Court Act 2004 section 36(6);
…
(f) make an order as to the costs of the appeal and the costs of the proceedings in the court of summary jurisdiction;
(g) make any other order it thinks fit."
The substantive framework to the first ground of this appeal
8 The Occupational Safety and Health Act, s 19(1) (in material part), and s 19(6), (7) and (9), provided as follows:
"(1) An employer shall, so far as is practicable, provide and maintain a working environment in which his employees are not exposed to hazards and in particular, but without limiting the generality of the foregoing, an employer shall –
(a) provide and maintain workplaces, plant, and systems of work such that, so far as is practicable, his employees are not exposed to hazards;
…
(6) An employer who contravenes subsection (1) commits an offence and is liable to a fine of $100 000.
(7) An employer who contravenes subsection (1) and by that contravention causes the death of, or serious harm to, an employee commits an offence and is liable to a fine of $200 000.
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- …
(9) An employer charged with an offence against subsection (7) may, instead of being convicted of that offence, be convicted of an offence against subsection (6)."
9 Occupational Safety and Health Act, s 3, defined, unless the contrary intention appeared, "hazard", "practicable" and "risk" as follows:
"hazard, in relation to a person, means anything that may result in –
(a) injury to the person; or
(b) harm to the health of the person;
…
practicable means reasonably practicable having regard, where the context permits, to –
(a) the severity of any potential injury or harm to health that may be involved, and the degree of risk of it occurring;
(b) the state of knowledge about –
(i) the injury or harm to health referred to in paragraph (a);
(ii) the risk of that injury or harm to health occurring; and
(iii) means of removing or mitigating the risk or mitigating the potential injury or harm to health;
and
(c) the availability, suitability, and cost of the means referred to in paragraph (b)(iii);
…
risk, in relation to any injury or harm, means the probability of that injury or harm occurring;"
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10 In this appeal, the appellant indicated it did not seek to re-open the question of whether the contravention of s 19(1) charged caused the death the subject of the charge. The appeal against conviction is against the failure to convict the respondent of the offence in s 19(6), which was a conviction open on the prosecution by virtue of s 19(9). No issue was taken with this position by the respondent.
The background to this appeal
11 The respondent is a company in the civil engineering industry. In late 2002 and early 2003 the respondent was carrying out earthworks associated with the subdivision of a stage in the "Somerly Estate" in the suburb of Clarkson in Perth ("the site"). These earthworks were preceded by surveyors employed by the respondent marking out levels for the lots in the site, as well as the roads and public open spaces. Those earthworks involved operators employed by the respondent then using heavy machinery to do the works required.
12 The heavy machinery included a bulldozer and several scrapers. The bulldozer would break up the ground. A scraper, pushed by the dozer, would then move across the disturbed ground to collect the excess dirt in a large bowl. The scraper with the dirt would then, under its own power, travel to an area where it would dump the dirt, before returning, again under its own power.
13 Due to the roles played by the dozer and the scrapers, the operator of the dozer was in charge of the work just described.
14 On 25 January 2003 a dozer and three scrapers were involved in the earthworks at the site. Michael Ireland was the bulldozer operator. Troy Pumphry, David Smith and Tai Paihana were the scraper operators. In all there were about ten people working at the site.
15 On that day, Ireland had left the cabin of the dozer to speak to Pumphry. He told him to reverse. Pumphry reversed. Shortly thereafter Ireland was found underneath Pumphry's scraper, and a short time later Ireland died.
16 The original prosecution was brought in respect of the subsequent death of Ireland. The complaint, dated 16 July 2004, was that the respondent:
" … being an employer, failed so far as practicable to provide and maintain a working environment in which its employees
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- were not exposed to hazards and in particular failed to provide and maintain a system of work such that, so far as was practicable, its employees were not exposed to hazards in contravention of Section 19(1) of the Occupational Safety and Health Act 1984 and by that contravention caused the death of an employee, namely Michael Ireland, contrary to Section 19(7) of the Act."
17 The particulars of charge, as amended, were as follows:
"1. Hazard.
Contact between an employee and mobile plant
Practicable measures.
It was practicable for the defendant [the respondent] to have provided a system of work in which the risk of contact between mobile plant and persons employed at the workplace was removed or mitigated. Such a system could have had the following features:
(a) Exclusion zones whereby mobile plant was not allowed to operate within a certain distance of a person on the ground, and a person was not permitted to be within a certain distance of operating mobile plant, unless the person was specifically authorised to be within that distance; and/or
(b) radio communication being available between each person operating mobile plant, between each person working on the ground and between persons operating the mobile plant and persons working on the ground; and/or
(c) reversing alarms on all mobile plant; and/or
(d) reversing lights on all mobile plant."
19 That trial, before his Honour Magistrate Wheeler at the Joondalup Magistrates Court, was held on 22 and 23 May 2006. There was testimony from Pumphry, Smith and Shane Peter Cheshire, who was a
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- surveyor and the supervisor at the site on 23 January 2003. There was also testimony from Peter John Green and Andrew Roche, inspectors with Worksafe, and Graeme Neil Richards, a director of a mining services company, as well as from a forensic pathologist. The respondent called no witnesses.
20 The decision of the learned Magistrate, on 25 May 2006, was that he was (TS 16):
" … not satisfied beyond a reasonable doubt the prosecution had established the accused [the respondent] failed to provide a system of work such that, as far as practicable, its employees were not exposed to hazards."
21 He further indicated that, while it was "unnecessary to go further into causation [of the death of Ireland]", the learned Magistrate (TS 16):
" … would not have found beyond a reasonable doubt the death was caused by any contravention of section 19(1), even had that been established."
22 I have previously indicated that the latter aspect of the learned Magistrate's decision is not pursued in this appeal.
The first ground of the appeal
23 This ground was that the Magistrate, in "acquitting the accused of an offence against s 19(6)" of the Occupational Safety and Health Act:
" … erred in fact and in law in finding that none of the measures particularised in subparagraphs (a), (c) and (d) of paragraph 2 of the particulars of the charge [above] were practicable;
Particulars of Ground 1
1. Operators of vehicles were required from time to time to leave their vehicle and become pedestrians around other vehicles.
2. There was a risk of serious harm in pedestrians being around vehicles.
3. The following measures would mitigate the risk of serious harm:
- (a) exclusion zone – operators would not drive their vehicles unless they were certain that a pedestrian was a specified distance from the vehicle;
(b) radio communication – operators would be able to communicate on occasions without getting out of their vehicles;
(c) reversing alarms – pedestrians would have a safety related indicator that a vehicle was being reversed (in circumstances where the driver was known to have significant blind spots while reversing)."
24 The submissions made to me focussed on the approach taken by the learned Magistrate to the evidence before him as to the severity of any potential injury or harm that may be involved and the degree of risk of it occurring; the effectiveness or suitability of the measures to address such a risk particularised by the prosecution; and the practicality of such measures.
25 It appears to have been accepted by both counsel before me that the correct approach is one that requires a balancing of the three matters referred to. This, however, is subject to a point I will return to, concerning foreseeability, which assumed considerable significance in the argument of senior counsel for the respondent.
26 There has been considerable judicial attention to the articulation and elaboration of the balancing approach I have described for the purposes of the Occupational Safety and Health Act and similar legislation interstate.
27 There is a rehearsal of the approach and what appear to be the principal authorities that is most useful for my purposes to be found in Western Power Corporation v Shepherd [2004] WASCA 233, Barker J, at [32] - [41]. There his Honour particularly referred to and quoted from Holmes v R E Spence & Co Pty Ltd [1992] 5 VIR 119 and R v Australian Char Pty Ltd [1999] 3 VR 834, as well as Tenix Defence Pty Ltd v MacCarron [2003] WASCA 165, E M Heenan J, MacCarron v Coles Supermarkets Australia Pty Ltd (2001) 23 WAR 355 (Full Court) and Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249.
28 In Western Power, (supra), Barker J said this, at [32] - [41]:
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- "In [Australian Char, (supra)], the Victorian Court of Criminal Appeal (Phillips CJ, Smith and Ashley JJ) also addressed the question of foreseeability in the context of s 21 of the Victorian Act. A worker was injured when he placed his hand between a conveyor belt and a drum. A prosecution alleging breach of s 21 on two counts went before a jury. The trial judge charged the jury on the meaning of 'practicable' by telling them it required an objective test and by referring to dicta of Harper J from [Holmes, (supra)] at 123-124. He also directed the jury that an employer is bound to have regard to the risk that its employees would act inadvertently or without reasonable care for their own safety.
The dicta of Harper J from Holmes (supra) that the trial judge quoted to the jury was that:
'The act does not require employers to ensure that accidents never happen. It requires them to take such steps as are practicable to provide and maintain a safe working environment. The courts will assist the attainment of this end by looking at the facts of each case as practical people would look at them, not with the benefit of hindsight, nor with the wisdom of Solomon, but nevertheless remembering that one of the chief responsibilities of all employers is the safety of those who work for them. Remembering also that, in the main, such a responsibility can only be discharged by taking an active, imaginative and flexible approach to potential dangers in the knowledge that human frailty is an ever present reality. This, indeed, is an element which often turns what would otherwise be a positive result into a negative one, so that, for example, the minor but less obvious traps may present a greater danger than the major and more obvious ones … One must then weigh the chances of spontaneous stupidity, or a fall, or the like, against the practicability of guarding the machine so as to maintain its function while preventing the human factor from resulting in injury. If the danger is slight and the installation of a guard would be impossibly expensive, or render the machine unduly difficult to operate, then it may be that the installation of that guard is properly to be regarded as impracticable. Each case must be decided on its own facts.'
(Page 12)
- In Australian Char (supra), the Court of Criminal Appeal held there was no misdirection by the trial judge in putting the issue of practicability to the jury in these terms. In particular the Court considered, at 846, the exposition of the law of Harper J to have been 'full and accurate'. The Court there added:
'The necessity for an objective approach was implicit in the judgment of Harper J … He was careful to warn against the dangers of use of hindsight. When he referred to "the knowledge that human frailty is an ever present reality" of which an employer's responsibility under the Act must take account, he was no doubt referring to an aspect of practicability derived from principles pertaining to common law actions in negligence for damages. When he referred to 'the chances of spontaneous stupidity, or a fall, or the like' he was doubtless adverting to the types of matters which may bear upon foreseeability of risk of injury and hence may bear, inter alia, upon "the severity of the hazard or risk in question".'
The Court, at 847, then went on to observe:
'It is one thing to say that s 21 imports concepts applicable to the tort of negligence - a proposition implicit in the joint judgment of Dawson, Toohey and Gaudron JJ in [Chugg (supra)]at 265. But it is another matter to conclude that s 21 requires the occurrence of an accident to an employee against which to consider an employer's acts or omissions. The obligation cast upon the prosecution is that it identify, with sufficient particularity, the breach of s 21(1) upon which it relies. In that context the prosecution carries the onus of proof in relation to practicability: Chugg at 249. Nothing in that obligation requires that an accident involving injury to an employee has occurred. It is consistent with this analysis that s 21 "confers neither a civil cause of action nor a defence to a civil action: s 28": Chugg at 260…
It follows from what we have said that proof of an offence against ss 21 and 47 is not dependent upon there having been an accident and injury to an employee. So, considerations apposite to the common law tort of negligence are not, in the context of an alleged breach of
- s 21, necessarily confined by a requirement of foreseeability of injury to a particular employee, that employee having in fact suffered injury. That does not mean, however, in the event that an accident has occurred and injury has been sustained, that the prosecution is precluded from conducting its case on a narrow basis. That was here the situation. The prosecution sought to establish breach of s 21 simply by reference to the circumstances in which injury was sustained by Evans. It was not obliged to take such a course in principle; but that is the forensic choice it made. Even limited by that context, however, the passage cited from Holmes did no more than set a proper framework for the jury's inquiry.'
- It is also worthy of note, though not a passage the trial Judge quoted to the jury in Australian Char, that in Holmes (supra), at 126, in relation to the argument that the employee's actions were not reasonably foreseeable by the employer, Harper J added:
'The question in cases such as the present is not whether the detail of what happened was foreseeable, but whether accidents of some class or other might conceivably happen, and whether there is a practicable means of avoiding injury as a result.' (Emphasis added)
The approach taken by the Victorian Court of Criminal Appeal in Australian Char (supra) has been endorsed and applied in this State in a number of cases. Most recently, in [Tenix (supra)] at [47], EM Heenan J rejected a submission that the approach taken in Australian Char should not be adopted in this State by reason of differences between s 21 of the Victorian Act and s 19 of the Act in this State. While accepting that the terms of the two provisions were not identical, EM Heenan J was satisfied, at least in relation to the circumstances of the case then before him, that the differences were not material and that the judgment in Australian Char 'contains an accurate description of the principles which apply in the case of a complaint alleging an offence against s 19'. With his Honour I respectfully agree.
In that case, at [48], EM Heenan J considered that the Magistrate who had found the statutory duty in s 19 of the Act to have been breached had correctly appreciated that the test for
(Page 14)
- providing a system of work such that, so far as is practicable, was one which avoided exposure of employees to hazards 'involved a balancing exercise and that employers were not required to anticipate every possible combination of circumstances which might expose an employee to risk'. His Honour also accepted that the Magistrate was not unappreciative of the fact that 'practicable' means reasonably practicable, having regard to the factors mentioned in the definition of that term in s 3, including the degree of the risk of the potential injury or harm occurring and the means of removing or mitigating that risk and the availability, suitability and cost of the means referred to for avoiding it.
It is plain the authorities require the 'balancing exercise', as EM Heenan J called it, to be conducted by reference to the facts of each case. Consequently, in [Coles Supermarkets (supra)], where a 13-year-old boy employed to collect shopping trolleys from around a shopping centre and return them to the Coles and Kmart stores at the centre was struck by an elastic strap which had been used to keep a number of shopping trolleys together whilst he was returning the trolleys to the Woolworths store at the centre and died from injuries, the majority was not satisfied the s 19 duty had been breached on the knowledge available. Murray J, at 389, with whom Wallwork J agreed on this question, said:
'The evidence of those persons who were associated with the operation of Rosalie's Trolleys was effectively that they had no knowledge of any danger associated with the use of elastic straps …
The question of practicability, in my opinion, had to be related back to the identified hazard that in some undefined way the employee might be struck by an elastic strap in such a way as to cause the kind of injury and the death which in fact ensued. Certainly it was reasonably practicable to take simple steps to obviate the risk if it was known, or reasonably foreseeable. Another means of securing the trolleys was in fact available at the time and other similar perfectly safe means might be readily imagined. The severity of the potential injury or harm of the kind which in fact occurred was, of course, very great, but the degree of risk of it occurring at the time was entirely
- unknown … At the time the accident happened, it was, I think, on the evidence before the learned magistrate, an entirely surprising event.'
- By contrast, Kennedy J, at 372, dissented in relation to this view, and would have found that the evidence before the Magistrate was capable of supporting a verdict of guilty. His Honour there stated that:
'In the present case, the third respondent's work practices might be held to have been deficient. The evidence was that parts of the area over which the trolleys had to be moved sloped. There might be held to be a risk that trolleys would break loose unless tied together. There were, however, no instructions given to the boys to use ropes to tie the trolleys together, it being left up to them to obtain ropes if they wished to do so. A practical system of work might have involved the compulsory use of ropes. Andrew had obtained for himself an occy strap to secure the trolleys. His use of the occy strap caused his death. Whether there was a work environment in which Andrew was exposed to the risk of being struck by an occy strap and whether the failure to maintain a safe work environment caused Andrew's death is for the magistrate to determine.'
In Tenix (supra), EM Heenan J noted, at [44], that when one speaks of foreseeability in the context of s 19 of the Act, whether objective foreseeability of a reasonable employer or the subjective foreseeability of a particular employer:
' … it is not necessary to show that the precise sequence of events which led to the death was foreseen or foreseeable. This is not the test for foreseeability because it is sufficient in the circumstances to ask whether a consequence of the same general character as that which followed was reasonably foreseeable as one not unlikely to follow from the use of electric arc welding apparatus in a confined space and in hot working conditions - see Chapman v Hearse (1961) 106 CLR 112 at 120.'"
(Page 16)
- for the shortcomings of their employees. My attention was drawn to a question asked by his Honour of Richards, whether it was necessary "to assume your workers are morons" (TS 110). While the form of this question is, it seems to me, unfortunate, there is no indication in his Honour's reasons, which I canvass in some detail below, that he did not appreciate either this aspect of the law, or any other.
30 It was also put to me that the learned Magistrate had placed greater emphasis on his assessment of the risk of an incident like the one in this case than on the other parts of the balancing approach, and thus failed to follow that approach correctly. I consider, however, that when his Honour's reasons are read as a whole, such a failure does not emerge. While it is true his Honour makes no reference to the costs of the measures in those of the particulars of charge he considered, some of which costs, it was contended for the appellant, were minimal, I do not consider it to be apparent he has failed to consider those costs.
31 I also note that, in order to succeed in a prosecution under a provision like s 19(1), it is not necessary for the prosecution to establish all of the particularised aspects of the contravention charged. It is sufficient that any of those aspects is established to be a contravention: Environmental Protection Authority v Sydney Water Corporation Ltd (1997) 98 LGERA 361, SC NSW CCA, per Gleeson CJ NSW (as he then was), at 365.
32 However, it was put to me by senior counsel for the respondent that, as I understood him, there is a threshold consideration in these matters. That consideration is the foreseeability of the consequence of the same general character as that which was involved. If that consequence is not foreseeable, in the sense developed in the law of negligence, then one does not undertake the balancing exercise.
33 Counsel's submissions referred me, inter alia, to the passage from Coles Supermarkets (supra), per Murray J, Wallwork J agreeing on this point, at 389 quoted in the lengthy extract from Western Power (supra) I set out above. That passage referred to the appropriateness of dismissal of a complaint under s 19(1) of the Occupational Safety and Health Act in a case where there was no evidence of a prior similar incident or "anything of the kind and so there was no evidence about the state of knowledge generally held about the risk and its magnitude", such that on the evidence the accident that happened was an "entirely surprising event". This was even although "as a matter of common sense" it would be "reasonably foreseeable" the instrument of the fatal injury in that case, the elastic strap
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- used to link shopping trolleys, if strained too tightly, could come off a trolley and injure a trolley boy using the strap: Coles Supermarkets (supra), per Murray J, at 389.
34 I understood this submission to be, in the language of the Occupational Safety and Health Act, s 3, "practicable", that an unforeseeable consequence in the sense referred to is not one of which there is a s 3 "risk". If there is no "risk", then it is not "practicable" to provide and maintain a working environment in which employees are not exposed to the "hazard" in question. The prosecution in such a case would have failed to establish an element of the offence, and would have to fail.
35 Thus, whether or not the learned Magistrate erred in any of the respects particularised under this first ground, there could be no basis for overturning his decision, in virtue of Criminal Appeals Act 2004, s 14(2), providing for the dismissal of an appeal, notwithstanding a ground of appeal is decided in favour of an appellant, if the court considers "no substantial miscarriage of justice has occurred".
36 The point is an important one in this case, on senior counsel's submission. That is because there was evidence, from Pumphry (22 May 2006, cross-examination, TS 28 – TS 29), Smith (22 May 2006, cross-examination, TS 42 – TS 43), and Cheshire (22 May 2006, cross-examination, TS 63), that would have warranted a finding the consequence was unforeseeable.
37 It is well established that reasonable foreseeability in the sense relevant to the law of negligence is relevant to considerations of contravention of s 19(1) of the Occupational Safety and Health Act: see Coles Supermarkets (supra), per Murray J, Wallwork J agreeing, at 439.
38 It is also the case that, although the matter of foreseeability is an objective one, the fact that the accused (here through its "directing minds" for this purpose, as it was put to me) "did not foresee the risk of some accident happening" is evidence that can be taken into account on the matter: Holmes (supra), Harper J, as quoted in Australian Char (supra), at 438; and Coles Supermarkets (supra), per Murray J, Wallwork J agreeing, at 389, returned to below.
39 Indeed, I note that "practicability" in Occupational Safety and Health Act, s 3 means:
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- " … reasonably practicable having regard, where the context permits, to …
(b) the state of knowledge about -
(ii) the risk of that injury or harm to health occurring."
"The event, itself, involved the unfortunate Ireland directing Pumphry to reverse and the, inexplicable, walking to the rear of the vehicle, being – and then being crushed. Such was outside the system of work employed on the site and is against all common sense and logic and not foreseeable by the accused."
41 I was referred to Wyong Shire Council v Shirt (1979) 146 CLR 40, on the duty of care in tort. I presume the reference was to the well known passage in the judgment of Mason J, Stephen and Aickin JJ agreeing, at 47 - 48:
"A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v Stone [[1951] AC 850], may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being 'foreseeable' we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the
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- probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."
42 Senior counsel referred me to an exchange in the cross-examination of Pumphry, in which language I have emphasised below that may have been inspired by this passage was put to the witness, to which he responded, as follows (22 May 2006, TS 28):
"You must have thought about this a lot over the time since the accident. Has it – – doing the best you can, do you think that you could ever have thought that he would do that?---No. I – –I reversed a lot of scrapers before that and I've reversed a lot since and you would never think that someone would walk in behind you when - - they've just told you to do it.
All right. So if I said that the idea of him actually putting his body in front of your reversing scraper was far-fetched, would you agree with me?--- Before this I'd say yes. Yeah."
43 Without deciding that there is a threshold consideration of the sort put to me, I do not consider this was a case requiring its application.
44 While the learned Magistrate used the language I have quoted, as I will shortly indicate he appears to have approached the case in terms of a consideration of the evidence as to the magnitude of the risk and the harm or injury that would follow if it materialised, the effectiveness of the particularised measures, and their practicality. That is, it seems he undertook the balancing exercise I have referred to.
45 Although the learned Magistrate does not explain why he approached the case as I have described notwithstanding his language as to "foreseeability", I note, on the authority of Holmes (supra), referred to by Barker J in Western Power Corporation (supra)at [36], that it is not foreseeability of the detail of what happened that is the question, "but whether accidents of some class or other might conceivably happen"; see also Tenix (supra), E M Heenan J, at [44] (the passage quoted above). While the fact that the accident did happen may not be sufficient for this purpose, as Coles Supermarkets (supra) itself entails, I note there was evidence in this case of two forms of recognition of the risk to personnel
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- on the ground from reversing mobile plant like the scraper at a site like this one, which is the class of accident which I am prepared to consider is that to which foreseeability is to be related. Those forms of recognition pre-dated the accident. The learned Magistrate himself referred to both forms of recognition.
46 One form of recognition was the evidence of an inspector for Worksafe that the scraper operated by Pumphry had a "reversing alarm" fitted, although when the scraper was inspected after, but on the day of, the accident its alarm was not operating (22 May 2006, examination-in-chief of Green, TS 65; and his cross-examination, TS 67). His evidence was that one of the other scrapers on the site on the day in question also had a "reversing alarm" fitted, although there is no indication in the evidence whether or not it was then operating. His evidence is further that the third scraper on site on the day in question did not have a reversing alarm fitted.
47 The learned Magistrate refers to this evidence, in respect of the scraper operated by Pumphry, in his reasons (25 May 2006, TS 7 and TS 12), although his Honour added that "the others didn't have them at all" (TS 12), and he also said "there was no reversing alarm system fitted to any of the scrapers at the time" (TS 9) and in his "summary" of his reasons he said "[t]he vehicles do not have reversing alarms" (TS 15).
48 It was put to me by senior counsel for the respondent that I should understand the learned Magistrate's references to the absence of alarms to be to "operational alarms", and I was directed to the standard for the reasons of Magistrates that they need not be a full or detailed statement: Nevermannv The Queen (1989) 43 A Crim R 347, per Malcolm CJ, at 350. Senior counsel, who appeared for the defendant before the Magistrate, also indicated that the case had been conducted on the basis there was no operational alarm on any of the scrapers. Counsel for the appellant, who was also its counsel at that hearing, did not indicate any dissent from this statement. Indeed his written submissions (par 11) referred to evidence of Pumphry that it was said was to the effect his scraper did not have a "reversing beeper or alarm".
49 Senior counsel also put it to me that there was no basis for any conclusion to be drawn from the fitting of an alarm that was not operational, where there was no evidence as to when, by whom and for what purpose it had been fitted, nor, I would add, what modifications had been made, if any, to the plant fitted with one in any material respects after installation of the alarm.
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50 However, I disagree with that submission. In my view the evidence of the presence of an alarm on two of the scrapers is some evidence of the reasonable foreseeability of collisions between equipment of this sort and persons on the ground.
51 I so regard the evidence I have referred to, whether or not the learned Magistrate so considered it, at least in respect of the scraper in question, although I have considerable doubt he did so consider it.
52 There is further evidence of such foreseeability, also referred to by the learned Magistrate. It was the "Occupational Health and Safety Procedures & Handbook" of the respondent (Exhibit 4), which employees of the respondent were asked to read, understand and sign (examination-in-chief of Cheshire, 22 May 2006, TS 51). This document elsewhere in the evidence is referred to as the induction handbook for operators like Pumphry. Part 10.13 of this document, bearing the heading "Road Construction Operations", read, in material part:
"Be aware of plant, which frequently reverse. On ground personnel to exercise caution when working or walking near operating equipment, and to maintain a high level of visibility."
53 The learned Magistrate noted this publication relatively early in his reasons for judgment (25 May 2006, TS 5), and, in his "summary", said this (TS 15):
"There is no exceptional hazard in operating these mobile plant [sic], above and beyond that of a more conventional large road-based motor vehicle with blind spots, such as a semi trailer. There is always hazards, but nothing – there is nothing, as I say, monstrous, about these vehicles. Hence, general warnings such as existed in the hand book were appropriate."
54 While it is not clear to me his Honour considered the handbook passage to be evidence of foreseeability, again I consider it to be such evidence.
55 In combination with the evidence of the alarms on the scrapers to which I have referred, the handbook, it seems to me, distinguishes this case from Coles Supermarkets (supra).
56 However, as will become apparent as I consider, separately, the particulars that make up this first ground, the degree of risk of the hazard in this case assumed considerable significance in the learned Magistrate's
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- reasons. That degree related to the noise scrapers made, particularly when they were in operation, on a site where not many, or even more than one, would be operating at the same time.
The first ground: particulars of charge – exclusion zones
57 The appellant's case at trial, as put in closing submissions to the learned Magistrate, was that (23 May 2006, TS 22), if:
" … there was an exclusion zone in place then Mr Pumphry would need to either be sure that there was no longer a pedestrian around him, ie., that Mr Ireland had returned to the cab, or, if Mr Ireland had been simply a pedestrian, that he was further than a certain distance from his machine before he started up and drove it."
58 It will be seen, from a comparison of this submission with the particulars of charge, par 2(a) (supra), that, while the submission in the second part paraphrases the particular, the submission in its first part departs somewhat from that particular.
59 The departure is, however, more apparent than real, in my view. That is because the first part elaborates on the application of the zone in the particular, by dealing with its implicit distinction between persons on the ground, and persons not on the ground.
60 Further, I was not directed to any objection to the submission or the evidence relevant to it on that account at trial. Although the contrary was put to me, there was no indication in the material before me that the submission did not reflect the case put by the prosecution.
61 The respondent focussed my attention on the exclusion zone put forward by Richards that was considered in detail by the learned Magistrate. However, as I will indicate, Richards also testified as to an exclusion zone of the sort the subject of the submission of counsel for the prosecution to which I have referred.
62 Counsel for the appellant submitted to me that the measure in the form of the exclusion zone as put to the learned Magistrate emerged sufficiently as "practicable" in accordance with the approach recognised in Chugg (supra), per Toohey, Dawson and Gaudron JJ, at 260 – 261:
"In some cases the mere identification of the cause of a perceptible risk may, as a matter of common sense, also constitute identification of a means of removing that risk,
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- thereby giving rise to a strong inference that an employer failed to provide 'so far as is practicable' a safe workplace. In other cases the same inference will arise from the identification of some method which would remove or mitigate a perceptible risk or hazard. And, in such cases, that inference might well be further strengthened by the failure of an employer to call evidence as to matters, such as cost and suitability, peculiarly within his knowledge. See Jones v Dunkel [(1959) 101 CLR 298]."
63 For this purpose, I was also referred to the document "Memo to all employees - Site procedure update – Machine/employee interface on Malavoca Worksites" (part of Exhibit 7C), issued after the incident in question. This memorandum instructed employees:
• not to assume the operator of machines had seen the machine;
• any person not required to be working closely with a machine to maintain a separation distance of 10 metres from any operating machine; and
• persons required to work close to machines to have an understanding with the operator on the method of working to apply for that operation.
64 The memorandum concluded as follows (emphasis in the original):
"Notwithstanding the above, machine operators must:
Ensure reversing alarms are working at all times, always look in the direction of travel, and if in doubt as to the whereabouts of ground personnel stop the machine."
65 It was accepted by the learned Magistrate that this memorandum could not be treated as an admission by the accused that the measures it referred to were reasonably practicable as at the date of the accident. The contrary was not put to me, correctly in my view. The state of knowledge of the risk as at the date of the accident is not clearly indicated by this evidence.
66 However, I accept the submission of counsel for the appellant that I can consider the memorandum for the light it casts (if any) on the possibility, effectiveness and cost of the measures it describes, which are
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- very similar to those the subject of the submission put by counsel to the learned Magistrate. I note for this purpose the authorities from the law of negligence on the relevance of precautions taken subsequent to an accident: see in particular Nelson v John Lysaght (Australia) Limited (1974) 132 CLR 201 at 215, per Gibbs J, Stephen and Mason JJ agreeing.
67 Counsel's submission to me was that the learned Magistrate had failed to deal with the case as put to him, which, on Chugg (supra), as applied to that case, on the evidence I have described, was an error. As I will shortly indicate, I consider the learned Magistrate did indeed fail to deal with the submission referred to.
68 Senior counsel for the respondent put to me that there was no evidence or submission as to how an exclusion zone of the sort put forward by the particulars of charge in this case would work in practice in relation to operating personnel. However, I cannot agree, in view of the document forming part Exhibit 7C to which I have referred.
69 Senior counsel for the respondent also put to me that on the evidence before the learned Magistrate he could not have been satisfied beyond a reasonable doubt that the charge was made out in respect of an exclusion zone of the sort within the particulars 2(a). I take this submission to refer to Criminal Appeals Act, s 14(2). However, I do not agree.
70 To consider these matters, it is necessary to review the evidence before the learned Magistrate and his analysis.
71 The only evidence on exclusion zones which it was suggested the learned Magistrate had before him (putting aside what he could draw from "the identification of some method which would remove or mitigate a perceptible risk or hazard", from Chugg) was that of Cheshire and of Richards.
72 The learned Magistrate in his reasons for decision does not refer to any evidence of theirs addressed to the exclusion zone as put by counsel for the appellant, which is of course the "method" identified for the purposes of Chugg.
73 Cheshire's evidence in respect of an exclusion zone to which the learned Magistrate referred was as to the one already in place on the site, being one for personnel other than those involved in operating plant on the site. The learned Magistrate referred to this exclusion zone in terms showing no sign of doubt as to its practicability (25 May 2006, TS 8). However, he appeared to distinguish the situation of personnel who were
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- involved in operating plant on the site, which derives support from the evidence.
74 Cheshire also gave evidence, to which the learned Magistrate made no reference, about an exclusion zone for operating personnel, as follows (cross-examination, TS 62):
"So is it necessary, then, for people to get down out of their vehicles - - out of their plant?--- Yes.
All right. Incidentally, we have heard from Smith that people got out to stretch their legs. Can you confirm that?--- Yes.
And he said he did it approximately half a dozen times a day. Is that correct? --- Yeah.
All right. So they got out to stretch their legs, they got out for smokos, they got out for instructions. Can you have, realistically, an exclusion zone which prevents them from being, say, within 10 metres of a scraper, if they're doing that? What – – can you see it working, in any way, in a workable practicable system? --- No.
And why is that? --- Every 2 minutes the job changes, sort of thing. Yeah."
75 This evidence is of course inconsistent with an exclusion zone that would prevent on-site approaches to mobile machinery. However, that was not the form of exclusion to which the particulars of charge 2(a) or the submission of counsel for the prosecution was addressed. The particulars and that submission were addressed to operating mobile machinery.
76 Richards's evidence included that he had no experience of an exclusion zone in a situation of a "broad piece of land where people are moving earth back and forward" (cross-examination, 22 May 2006, TS 97). He did, however, describe a form of exclusion zone for such a site involving communication by two way radio with operators of mobile plant of the need to meet at a "disclosed meeting point" (examination-in-chief, TS 91). The learned Magistrate referred to this measure as "not a practicable way of operating, bearing in mind the definition of practicable includes an assessment of the degree of risk" (25 May 2006, TS 11), and no issue was taken with that conclusion.
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77 However, Richards also gave evidence of a work system for such a site where it was necessary for operating personnel to meet on the site, as follows (cross-examination, TS 102):
"So if the supervisor deems it appropriate to actually get down out of his machine and - - with his hand or a stick, draw in the soil what it is he wants his scraper drivers to do, they're all then in the exclusion, aren't - - they're all inside the exclusion zone? --- Mm hm.
They're all disobeying the exclusion, are they? --- Well, in a - - in a situation like that, the supervisor would call up -- and say that, 'I'm going to approach that machine - - those machines - - or that machine.' Either that machine would stop and the others would continue, providing that machine got out of the loop, or they would all stop. And, I guess, he would give his instructions, he would hop back into his vehicle, be it - - whatever he's in on the day, a dozer, or a light vehicle, and he would move away."
78 Later in his cross-examination he was asked to consider the efficacy of this arrangement on the facts of the incident in question, put to him as that Ireland told Pumphry "to reverse it precisely where Pumphry did and then he went and stood in front of the reversing scraper" (TS 106). The ultimate exchange was as follows (TS 107):
"In terms of the scraper operator, in any circumstances, whether it be here or anywhere else, if he is told to do something by his superior - - his supervisor, or his leading hand, you're seriously suggesting that he should disobey that instruction, are you? ---Am I allowed to answer that question?
Mm hm? --- I tell people every day what to do with machinery on a site, be it civil or --- or mining, it's irrelevant. The fact is that they also have the duty --- and I’m not - -I'll leave - - the care of – a duty to make sure that they operate the machine according to their instructions.
Yes? --- And the instructions would be - - or, the training should be such that they don't expose other people to harm.
Yes? --- Now, if a person walked up to a scraper or a truck or a grader - - it's irrelevant - - and gave a series of instructions,
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- more than one, or half a dozen, the fact is he wouldn't move that machine until he was sure all personnel were clear."
79 However, Richards was pressed on how the arrangements he described would work so as to prevent a collision like that which occurred in the case. The operation of the system was put to him in terms that Pumphry had got off his scraper, found Ireland in the area to which the latter had directed the former to reverse, and told Ireland to "get back" (TS 107). Richards did not, it seems to me, agree that the system would fail to prevent the accident in that case (TS 107 – TS 108), although I also note his earlier testimony in cross-examination, as follows (TS 103):
"Well, the evidence is that he stood there while he tried to get the attention of some other scraper operator. How - - how would an exclusion zone work there? --- In that situation – –
It wouldn't work, would it? --- - - from the point of meeting with the scraper operator, probably not."
80 The learned Magistrate, it appears, did not address the measure of a "training" kind referred to this evidence. However, he did make several references to the induction handbook to which I have previously referred (25 May 2006, TS 5 and TS 8). Richards's evidence also makes reference to the induction handbook, as instructions for what to do once on the site (cross-examination, TS 98, TS 99). His Honour said this in particular (25 May 2006, TS 5):
"There's no particular methodology of work practice described and I note that the prosecution is not alleging a training failure as, for example, set out in section 19(1)B [sic], although I appreciate that a lack of training can lead a court to infer lack of system of work."
81 It seems to me that, while his Honour recognised that the general instructions in the induction handbook needed to be distinguished from a "particular methodology of work practice", and that a training failure might be the basis on which to infer a lack of a particular system of work capable of representing a measure required by Occupational Safety and Health Act, s 19(1)(a), he did not address the measure for which there was some support in the evidence of Richards, and which had been referred to the particulars of charge 2(a) and the submission to him by counsel for the prosecution.
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82 In my view it could not be said that the evidence of Richards offered no support for the measure because it might be said he had agreed that the measure would not have prevented the particular accident. The appellant had not, it seems to me, fought the case on that particular accident alone, given the definition of "hazard" in the particulars of charge, and the evidence the appellant adduced. I also note counsel's opening address (22 May 2006, TS 6) in which just this point is made. The medical evidence with respect to how this particular accident occurred, to which I return under the second ground below, indicates that Ireland tragically suffered from a form of cognitive impairment which may have been the explanation for his being in the position that led to the accident. The possibility that others without such a condition might be involved in a collision with a reversing scraper was it seems to me part of the risk to which the evidence I have referred to in this connection drew attention.
83 Further, there was the support for the measure in question in the post-incident memorandum (part of Exhibit 7C) which I have previously considered.
84 Counsel for the respondent directed me to the conclusion of the learned Magistrate as to the weight he should attach to the evidence of Richards as to measures for the respondent's work site. There was no issue taken with that conclusion before me.
85 The learned Magistrate indicated he found Richards's expertise lay "principally" in relation to "mining", and that (25 May 2006, TS 10):
" … work systems between an above or below-ground mine site, and a basic earth moving project, shifting in essence, top soil, which is effectively what this was doing, are some distance apart."
86 The learned Magistrate concluded (TS 10):
"In the end, I found that Mr Richards' experience enabled him to assist me, giving his views on what he felt could be done in the work place in question, but I do not feel compelled to accept those views as being overly authoritative as to what should occur in the work place in question, due to my not being satisfied as to his expertise on the project in question and the type thereof."
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87 It was not suggested to me that such a conclusion was not open to the learned Magistrate on the evidence before him as to Richards' qualifications and experience.
88 At the same time, the learned Magistrate was not indicating in these passages that he should attach no weight to the evidence of Richards. Indeed, as I have shown, his Honour indicated that weight needed to be attached to his evidence as to the other measure I have referred to from his evidence, even if ultimately his Honour concluded that measure, which Richards' evidence supported, was not practicable.
89 Further, the measure in question here derives support not only from Richards' evidence, but also from the post-incident memorandum I have referred to, as I have said.
90 On all of this material, and having considered the decision of the learned Magistrate as a whole, I do not consider he in fact dealt with the measure that had been put to him by the appellant, following the relevant particular of charge, and for which there was support in the evidence as I have indicated. I am not satisfied this is a case where the reasons of the learned Magistrate should be seen to have adequately dealt with the matter, by reference to the approach to considering such matters in Nevermann (supra), per Malcolm CJ, at 365, on which see also Garrett v Nicholson (1999) 21 WAR 226, per Owen J, at [74].
91 I also consider that the evidence I have referred to prevents me from being satisfied the result in this case would have been the same even had the learned Magistrate properly considered that measure. That is, I cannot conclude no substantial injustice was done for the purposes of Criminal Appeals Act, s 14(2). This is not to say on all of the evidence at the trial, which the learned Magistrate had the advantage of hearing, that there might not have been a basis for a reasonable doubt as to the practicability of the exclusion zone in question. It is rather to say that I cannot arrive at the conclusion that a reasonable doubt necessarily arises out of the evidence to which my attention was drawn.
92 This conclusion means I do not have to consider whether or not the measure of the exclusion zone in the particulars of charge, considered without any supporting evidence, would have been sufficient to give rise to the inference referred to in Chugg (supra). Had it been necessary to do so, I would have considered the inference should not have been readily drawn. This is in view of the evidence on the limited value of measures like it that was drawn from Richards in the cross-examination of him on
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- instructions to workers to take specific measures for their own safety in the face of approaching machinery (see TS 110).
93 My conclusion here means that, on this particular of ground 1, the appellant's appeal succeeds: see EPA (supra), per Gleeson CJ, at 365. However, in the event I am wrong on this particular, I should also indicate my conclusions on the remaining particulars of ground 1, and on ground 2.
The first ground: particulars of charge – two-way radios
94 The appellant's submission in relation to this particular was that the learned Magistrate erred not undertaking for this particular of charge the balancing exercise to which I have repeatedly referred.
95 The learned Magistrate's reasons in relation to the measure of two-way radios were as follows (25 May 2006, TS 11, TS 14):
"Now, in essence, Mr Richards' main proposal is that drivers stay in the cabins of their vehicles and communicate by two-way radio and thereby – – this thereby excludes them from the ground, hence you can call that an exclusion zone. And that's, in a nutshell, what he was saying, although he did concede, of course, there were times when they had to get onto the ground.
However, it must be noted, the scrapers, at least, and I would warrant, the dozer as well, are noisy inside and outside the cabs and the operators are obliged to have ear plugs or muffs whilst operating the machinery. The effectiveness of using two-ways for communicating complex instructions is dubious, in my view.
…
The plant operators communicated by voice, as required, and stopped their equipment when doing so. They could not communicate when the vehicles were in motion. This, in fact, in my view enhanced safety. The machines were not fitted with two-way radios of the like. I am not satisfied beyond a reasonable doubt it is the norm in the industry to fit radios in dozers and scrapers. Indeed, the only evidence on that issue is a report by a project manager in [Exhibit] 7C and that asserts it is not the norm to have two-ways. There was evidence from
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- Mr Smith that he had worked in situations for Main Roads Department where there are two-ways. But in - - overall, I am not satisfied that it's the norm in the industry.
The plant operators were required, as part of appropriate measures, to protect their hearing, to use ear plugs or ear muffs for noise reduction. It would not be practicable to conduct all communications between dozer and scrapers by radio due to the noise in cabins and the difficulty of communicating complex operational instructions under those conditions."
96 It was put to me his Honour was in error in not considering for the purposes of the balancing exercise the extent to which two-way radios could reduce the need for operators of mobile machinery to get on to the ground near the machinery for the purposes of communications.
97 However, on the passages I have just quoted, I consider his Honour did in fact give the matter due consideration in those terms.
98 He there acknowledged there was evidence on the use of two-way radios in the earth moving industry, but also that such use was not the norm (22 May 2006, examination-in-chief of Pumphry, TS 14, which appears to be the evidence of "Smith" that the learned Magistrate had in mind; and also the Report of Investigation into the Death of Michael Ireland by Peter Djordjevic, Project Manager, Malavoca, part of Exhibit 7C). While it was not necessary to the appellant's case that the use of such radios have been shown to be the norm, I consider his Honour could properly weigh the evidence that such use was not the norm in making his determination as to practicability, as it appears to me he did.
99 I also note his Honour's reference to "ear muffs", with respect to which he had earlier said this (25 May 2006, TS 6):
"Now, there are clearly noise issues with the machines. For their protection the men wore ear protection to prevent long term hearing damage. The exact nature of these plugs or ear muffs was never really revealed. It was company policy and I find it was adhered to and I find that it should have been adhered to because such long term noise damage would a hazard which they would be required by the Occupational Safety Act – the company, that is – to protect their workers from – – its employees from."
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100 In that context, I consider the reference to "ear muffs" in the passage from his reasons previously quoted indicates the learned Magistrate had also weighed in his assessment of the practicability of the measure of two-way radios the use of ear covering devices by the operators of mobile machinery like the scrapers. It appears to me that on the evidence as he described it, with which description no issue was taken before me, it was proper for him to do so.
101 It was put to me for the appellant that the learned Magistrate should have inferred that the use of a two-radio was practicable and I was again referred to Chugg (supra). I was also directed to the evidence of Richards (22 May 2006, examination-in-chief, TS 92 – TS 93) that such equipment is "fairly accessible in this day and age". However, in view of the evidence that the use of such radios is not the "norm" in the industry, and the evidence of the noisy environment, involving the use of ear protection devices, in which such equipment would have to be used, evidence to which the learned Magistrate, as has been seen, made reference, it seems to me that any such inference could be seen to have been rebutted.
102 It also seems to me that the learned Magistrate in the passages I have quoted weighed the extent to which two-way radios, considered on the evidence before him, might indeed reduce the need for on the ground exchanges. I particularly note his acknowledgement the evidence that not all communications at the site could be conducted by two-way radio. It was put to me he had not properly weighed this evidence, which was that, while not all communications could be so conducted, some could (cross-examination of Cheshire, TS 62; examination-in-chief of Richards, TS 89). However, in my view the learned Magistrate did indeed, as indicated by the passages I have quoted, weigh the evidence of the contribution two-way radios might make to reducing on the ground exchanges, given their non-use in other settings, and the noisy environment in which they would be operated. I note again the standard I should apply to considering reasons of the sort in this case: Nevermann (supra), per Malcolm CJ, at 350.
103 I note that before me counsel for the appellant indicated that a two-way radio would have enabled Cheshire, who saw Ireland in the path of the scraper, to alert Pumphry to Cheshire's concern (about which he testified, 22 May 2006, TS 57) lest there be contact with Ireland. However, I was not taken to any part of the trial in which this possibility was put to His Honour. While the possibility has some intuitive appeal, it was not a matter on which any evidence from that witness, or from any other witness to which my attention was called, was addressed. I do not
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- consider in the circumstances the possibility adds significant weight to the measure of the two-way radio.
104 I would therefore not uphold this particular of the first ground.
The first ground: particulars of charge – reversing alarms
105 Counsel for the appellant submitted that the learned Magistrate had not properly weighed the evidence as to the value of reversing alarms.
106 The learned Magistrate's reasons as to reversing alarms were as follow (25 May 2006, TS 12, TS 15):
"The other principal part of the prosecution case was that the vehicles in question ought to have had reversing alarms on all mobile plant. On the evidence, it is clear that Pumphry's scraper did have a reversing alarm, of some sort, which was not functioning and Inspector Green confirmed that. The others didn't have them at all. The dozer wasn't the subject – – the subject of evidence on this point, in my – – as far as I recall.
Interestingly, there was no evidence as to the frequency with which these scrapers are operated in reverse gear. Mr Richards asserted that the reverse alarm could have prevented the accident, but is, of course, was of necessity, speculation by him. He did concede that the site where there is – – on a site where there was regular reversing by vehicles and shut them out eventually. I do accept that he was referring to sites where there are a number of such vehicles and reversing constantly.
Again, I have no evidence as to the frequency of reversing. I think it unlikely it would be great – – very regularly done, because the nature of the scraper is to go forward and scoop up the dirt into its bucket and it's pushed from behind. So that's all I can say. I can't say more on the frequency of reversing.
The nature of the alarm buzzer proposed by Worksafe – – by the prosecution is not clear either. As a layman I've heard reversing beepers on conventional road vehicles such as 1 tonne utes, even semi-trailers, but have no ideas just the sort of buzzer or sound level proposed by the prosecution, with such heavy equipment.
I have doubts about the efficacy of conventional car reverse buzzers on such heavy equipment, particularly in light of stated
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- evidence that the engine – – engine noise, exhaust noise and transmission noise is loud, and that comes from Pumphry and Cheshire. And the same noise is heard going forward or backwards, and is well above idling noise.
…
The vehicles do not have reversing alarms, but there is no evidence as to the effectiveness of such proposed alarms, or, indeed what the alarms consisted of and how powerful they would be. I could not conclude that such reversing alarm, even had it been established, would have prevented the collision, as the machine was reversing towards Ireland, whether or not – –whether there was an alarm or not."
107 It was put to me that the learned Magistrate had not properly considered the evidence that reversing alarms were used on heavy equipment (22 May 2006, examination-in-chief of Pumphry, TS 15; of Smith, TS 37; and of Cheshire, TS 92, as well as his cross-examination, TS 106). This lack of proper consideration was to be seen in the learned Magistrate's use, in his assessment of the measure of a reversing alarm, of his view of the "efficacy of conventional car reverse buzzers on such heavy equipment". No witness had testified as to the use of such "buzzers" on heavy equipment.
108 However, I do not consider that his Honour was thereby indicating he was testing the issue simply in that way. It seems to me that, as the immediately preceding part of his reasons indicates, he was drawing attention to the matter of the need for the alarm to be heard and noticed above the noise of the equipment. There was evidence before him of the difficulties of hearing alarms above the sound of a scraper "going back with full power, with transmission noise and stuff, if it is mounted in the wrong place" (re-examination of Pumphry, TS 30), and that alarms are "loud, but at the same time you have got your machine noise, machine engines nearby so I don’t know how effective they are" (examination-in-chief of Cheshire, TS 54). There was also evidence of the difficulty for alarms being noticed on sites where there were "quite a few beepers going" (cross-examination of Cheshire, T/S 61), and on such sites of the listener becoming "numb or immune to reversing alarms" (cross-examination of Richards, TS 109). It is clear from the passage I have just quoted from his reasons that the learned Magistrate had evidence of these two sorts in mind in relation to his assessment of a reversing alarm as a measure.
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109 It was put to me for the appellant that the site was not one where there was a great deal of equipment operating, and so there was not a great deal of engine noise and thus not a great deal of potential for reversing alarms to sound. I was also reminded of the evidence that the scrapers had significant blind spots, which I took to be a reminder of the risk which a reversing alarm could address. Further, I was reminded of the potential for serious injury from reversing activity.
110 However, there was evidence that scrapers in operation are "loud" even when stationary and louder still when in motion (22 May 2006, cross-examination of Pumphry, TS 24-25; and of Cheshire, TS 61), and that when they were in motion close to a person on the ground it would be impossible for that person not to hear them (22 May 2006, examination-in-chief of Smith, TS 43; and of Richards, TS 105). The passages I have just quoted from his reasons indicate to me that the learned Magistrate had evidence of those sorts in mind in relation to his assessment of the reversing alarm as a measure.
111 So far as the matters of blind spots for scrapers, and their potential to cause serious harm, are concerned, his Honour had earlier in his reasons, in relation to his assessment of the exclusion zone suggested by Richards involving the use of two-way radios and a park up area, said this (TS 11 - TS 12):
"These machines are not much more likely than any other more common motor vehicle to cause injury or harm to – – to third parties. There is more risk – – there is just as much risk, or perhaps even more risk of being hit by a housewife reversing a Toyota Landcruiser out of a parking bay at the local shopping centre, than being reversed over by a scraper on a limited access subdivision which, in the early stages, a sand pile.
Obviously, the severity of any injury caused by the scraper is likely to be great because of the size of the vehicle. What I am saying is that these large motor vehicles with blind spots. No more, no less. And reversing is always going to be hazardous to that, to an extent."
112 I consider this indicates that his Honour was aware of just the risk to which the submission for the appellant drew my attention. I would be reluctant to conclude he had lost sight of it for the purposes of his assessment of the measure of the reversing alarm. I note again Nevermann (supra), per Malcolm CJ, at 350.
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113 It was put to me, however, that there is no indication in his reasons that the learned Magistrate had taken into account the evidence of Richards, not tested in cross-examination, as to the cost of reversing alarms, as follows (22 May 2006, TS 92):
"Are reversing alarms expensive?--- Not to my knowledge. I mean, I guess some of them are, but, generally, they're fairly cheap units."
114 While I agree there is no indication in his reasons the learned Magistrate had taken this evidence into account, I also note his view that the nature of the alarm proposed in the prosecution case was "not clear". I did not understand this view of the case to have been challenged by the appellant. In the context of that view, I note the possibility that an alarm might not be cheap that is acknowledged in the evidence of Richards I have just quoted, although I also note that Richards was not cross-examined on this point.
115 However, on the learned Magistrate's view, it would not have been evident how on Richards' evidence he should assess the cost of a reversing alarm where he had concluded the sort of reversing alarm to be provided had not been made clear to him. In any event, it is not clear to me that the cost of the alarm might have changed the learned Magistrate's overall assessment of the measure in this case, given his view that (TS 15):
"There was only one piece of plant mobile at the time of the accident and it's engine note, transmission noise and exhaust could be heard above the noise of other idling machinery/stationary plant on a site well insulated from other machine noise by virtue of it being a vacant plot of land of subdivision size.
It is inconceivable that Ireland didn't hear the scraper behind him."
116 It seems to me this passage indicates the view of the learned Magistrate that the noise of the scraper would provide sufficient warning of its approach. That is a view which, on the evidence to which I have referred, was open to his Honour, which would indicate that a reversing alarm would not add anything by way of warning sufficient to justify its use.
117 I note that my attention was drawn to the record of interview of David Gilbert Randall, who refers to himself in the interview as
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- "Manager" of the respondent (Exhibit 7B). In that interview, as read out in the examination-in-chief of Roche (22 May 2006, TS 78), he was asked as to the company's policy with respect to reverse alarms found not to be operational on company "mobile plant". He replied:
"'If it is reported defective then it would be repaired.
'Are the operators allowed to use the machine if the reverse – – '
It says reverse beepers. I presume its [sic] reversing beepers.
' – – are not working?
'I would they would do if they knew it wasn’t working. They would report it and it would be repaired as soon as we could.'"
119 However, it was also put to me that the learned Magistrate had failed to take account of the evidence that a reversing alarm had the advantage over the noise of a reversing scraper of indicating it was being reversed (cross-examination of Richards, TS 105). There is no indication in his reasons that he did take account of that evidence.
120 However, it was not made clear to me where in the evidence the risk of a reversing scraper was shown to be different from one proceeding forward, other than what might be inferred from the evidence of Richards to which I have referred, and from the nature of a reversing alarm itself, by reference to Chugg (supra), as a matter of common sense.
121 In relation to the evidence of Richards, I also note, however, the following passage, also from his cross-examination (TS 104):
"You know that a scraper operator doesn't sit - -?---He sits on a - -
- - front - - front to the window?--- - - he sits - -
- - he sits - -?--- - - side on.
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- - - sort of, like this?---It's just like I'm sitting about, right now.
Almost right angles to the front?---Well, about - - about - - just under 45.
And you know he has a complete blind spot in the rear of his - - ?---He has several."
122 There was also evidence from Pumphry that the scraper in this case had several blind spots, "pretty much the whole of the left-hand side of the scraper, fro [sic] where you're sitting" (22 May 2006, examination-in-chief, TS 19).
123 On all of the evidence referred to in this connection, I consider that his Honour's conclusion would not have been different had he addressed the evidence of Richards first referred to. I also consider that this evidence undercuts the use of Chugg (supra) in this context.
The second ground of the appeal
124 This ground arose out of the decision of the learned Magistrate as to costs.
125 It was common ground, before the learned Magistrate and before me, that the Costs Determination applied to the prosecution in this case. Item 7 provides as follows:
"Complex matters and matters involving a high degree of skill or urgency:
Where a matter is complex or involves a high degree of skill or urgency, notwithstanding the rates of scale set out in the tables for this determination, the defendant is entitled to recover a fee that is greater than the one that is set out in this determination, if it is reasonable in the circumstances."
126 The learned Magistrate concluded that costs should be awarded under this provision, expressing his conclusion as follows (25 May 2006, TS 19):
"In my view, this case still is - - whilst it fell short, or didn't go the full distance and that's to - - the counsel are to be congratulated on that, there were - - there are, in my view, complex issues involved in it and I think it does require - - and it can certainly require for a company in the position of [the
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- respondent] an engagement of senior counsel. In my view it does come outside the ordinary and I will - - I am prepared and I do feel this is a matter that should go outside the scale."
127 The present ground of appeal was that the learned Magistrate in making this decision:
"Erred in fact and in law in deciding that the matter was complex for the purposes of paragraph 7 of [the Costs Determination]."
128 I consider this ground of appeal must fail.
129 The learned Magistrate, in determining costs should be awarded above the scale, referred to the difficulty created for prosecution and defence arising out of the former's need to prove "a failure to do something", evidenced here by the fact the trial had been set down for five days and involved a considerable amount of preparation (25 May 2006, TS 19).
130 Before me counsel for the respondent referred to the necessity to obtain and evaluate medical reports from a Dr Gubbay, Clinical Professor of Neurology, which became Exhibits 9 and 10. That necessity was described to me as being to gain a better understanding of how the accident might have occurred notwithstanding the noise made by the approaching scraper, which Ireland had in fact directed to reverse. Those reports drew attention to a form of cognitive impairment as a possible cause of the accident, a matter to which I have previously referred. Those reports had been put to the only medical witness called at the trial, Dr Cooke, who had endorsed their principally relevant conclusions as to causation with some reservations (cross-examination, TS 4 - TS 6). These reports had addressed matters of some complexity, which had imposed corresponding demands on those preparing for the trial. Dr Gubbay's reports appear to have had an important influence on the learned Magistrate's conclusion on the issue of causation, which he arrived "in the light of the medical evidence" (25 May 2006, TS 16).
131 I consider these matters sufficient to preclude me from interfering with his Honour's exercise of discretion as to the applicability of the scale.
Conclusion and orders
132 I have concluded the appeal should be upheld as to the particular under the first ground to do with the measure of an exclusion zone.
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133 I will hear from the parties as to the appropriate orders to make in this case. I should indicate my preliminary view is that the appropriate substantive order is for the matter to be sent back for a new trial before a different Magistrate.
0
10
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