Shepherd v Murray - [2000] WASCA 281

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: SHEPHERD -v- MURRAY [2000] WASCA 281

CORAM: MILLER J

HEARD: 22 SEPTEMBER 2000

DELIVERED : 29 SEPTEMBER 2000

FILE NO/S: SJA 1101 of 2000

BETWEEN: TANYA GAI SHEPHERD
Appellant
AND
DEREK ROBERT MURRAY
Respondent

Catchwords:

Occupational Safety and Health Act 1984 s 20 - Offence of failure by employee to take reasonable care for safety of another - Elements of offence - Policy of Act - Act of reversing truck to trailer while fellow employee behind - Whether decision of Magistrate to dismiss charge correct

Legislation:

Occupational Safety and Health Act 1984, s 20(1)(b), s 20(4)

Result:

Appeal allowed
Decision to dismiss charge set aside
Order for conviction
Remitted to Petty Sessions for consideration of penalty

Representation:

Counsel:

Appellant: Ms J C Pritchard
Respondent: No appearance

Solicitors:

Appellant: State Crown Solicitor
Respondent: No appearance

Case(s) referred to in judgment(s):

Green v Mabey t/as H Mabey & Co, unreported; SCt of WA (Parker J); Library No 940711; 7 December 1994
Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40
Leighton Contractors Pty Ltd v Ridge, unreported; SCt of WA (Miller J); Library No 980650; 23 November 1998
Wasley v Green, unreported; SCt of WA (Murray J); Library No 940380; 28 July 1994

Case(s) also cited:

Morrison v Competitive Foods Limited t/as Hungry Jacks, unreported; SCt of WA (Murray J); Library No 9118; 25 October 1991

MILLER J: The respondent was charged in the Court of Petty Sessions, Armadale that on 2 January 1999 at the corner of South West and Albany Highways, Armadale he, being an employee, failed to take reasonable care to avoid adversely affecting the safety of another person, namely Terry James McCaw, through his act of reversing a prime mover onto a trailer contrary to the provisions of s 20(1)(b) and s 20(4) of the Occupational Safety and Health Act 1984 ("the Act"). The respondent pleaded not guilty to the charge and came before Mr T J McIntyre SM in the Court of Petty Sessions at Armadale on 8 June 2000 when he represented himself.
Evidence was led before the court that on the day in question McCaw had assisted the respondent in bringing a trailer from his prime mover down the Bedfordale Hill. There was evidence that McCaw had driven what is known as a "block truck" to the top of the hill, where one of the respondent's trailers had been hitched onto that truck, so that he (McCaw) could follow the "mother truck" driven by the respondent down to the bottom of the hill where the trailer was unhooked from the block truck and re‑affixed to the mother truck. It appears that only one trailer can be taken down the Bedfordale Hill and hence the need for McCaw to assist by the use of the block truck for that purpose.
After McCaw had unhooked the trailer from the block truck he went to assist the respondent affix the second trailer to his truck. He observed that the second trailer had a broken stand and the draw bar was propped up with a piece of wood. Nothing turns on this. The incident which then occurred took place at around 10 or 11pm on the night of 2 January. As the respondent backed his truck to the position of the second trailer he was out of alignment and too far to the right. McCaw thereupon gave him hand signals to that effect, indicating to him that he should go forward and straighten up. As the truck reversed for a second time towards the position of the trailer McCaw noticed that the draw bar was too low to go into the ring feeder and so put his hand up to signal to the respondent to stop. McCaw went to lift the trailer stand and put the block of wood properly underneath the frame, it being on the actual ring attached to the stand. To do this McCaw took hold of the apex of the trailer stand to get what he described as "maximum leverage on the draw bar because they're quite heavy". He was about to put the wood underneath the frame and had "just about actually achieved that" and was about to let the trailer stand go when the truck backed onto his hand and crushed it. As he put it "it got caught on the end of the draw bar; the ring there at the end and on the connection called a ring feeder". The result was that McCaw suffered a serious hand injury leading to the loss of a finger. In his testimony he was quite stoic about the matter, stating that "I guess it's not too bad. Could have been a lot worse".
The prosecution called Alan Lyndon Rolls, an inspector with WorkSafe Western Australia and the holder of a certificate of occupational health and safety. Mr Rolls had, since 1993, been working with (inter alia) the transport team and was involved with heavy haulage vehicles. He conducted an interview with the respondent in which the respondent explained what happened as follows:
"Terry followed me down Bedfordale hill into the car park at Pioneer Village. He pulled up behind me and de-rigged the trailer. He pulled his truck out of the road and I lined up for the trailer so that I could hook it up. Terry came up to the window of the truck, and I thought he said it was all right for me to back up. But apparently, when I talked to him later he said that he meant me to stop so that he could adjust the leg. Then I put it in reverse to hook up the trailer. As I went back I heard Terry scream out, so I drove forward 6 inches because I wasn't sure what the situation was. I wasn't sure if I had run him over or if he had his hand caught. Terry came rushing out from behind the back of the trailer holding his hand and explained that he had damaged his hand."
Mr Rolls gave evidence that there is in the transport industry a standard operating procedure when a truck is being reversed with the use of a guide. His evidence was:
"... the training counsel instruct when they're training people to make sure that they're standing at the back of the trailer but outside it where the driver can see them, and that they use hand signals when they have to go or stop the truck or whatever has to be done. That the truck should never be reversed or moved in either direction when the person is out of view of the driver."
According to Rolls, the training manual is available to "any person that wants it", which presumably means that it is available to the industry at large.
The respondent gave evidence at the hearing. His testimony was in similar terms to what he had told Rolls. He said:
"When we got down to the bottom of the hill, Terry - - - We unhooked the trail [sic]; not quite sure who had unhooked what, but I'm pretty sure Terry unhooked the trailer. He parked this truck to the side. Then I reversed the semi back onto the trailer. And the first attempt I wasn't lined up. So I pulled forward and had another go, and that's when Terry came up to me and - - - to the window, and I thought he said that it was right to go. This was when I was going to go the second time. And - - but talking to him afterwards he meant me to stop.
And in the meantime, he went back around to the towing eye and lifted it up as I was reversing back. And that's when I heard Terry call out. I pulled forward 6 inches because I wasn't sure whether I'd run him over with the wheels or he was caught up. And that's when Terry came out the side making a fair bit of noise, and realised that he had his hand caught."
When asked by the learned Magistrate for an explanation as to how the incident had occurred, the respondent frankly stated:
"Well, there's two things wrong here. I shouldn't have reversed back without - - with him being in there, but Terry shouldn't have grabbed the end of the draw bar either."
The learned Magistrate gave his decision on the matter immediately. He pointed out that the test in relation to the charge against the respondent was "an objective test" and, after a short statement of facts, reached the following conclusions:
"This incident occurred because in the process of adjusting the draw bar Mr McCaw put his hand to the front of the draw bar and the truck then reversed. At no stage should anything I say be interpreted as any sort of criticism of Mr McCaw because it's not intended to be so, but at the end of the day, as Mr Murray rightly says, there's two factors that came together. One is that Mr McCaw put his hand between the front of the draw bar and the reversing truck and the other is that Mr Murray reversed the truck.
I have heard from Mr Rolls about the set of rules that are available with respect to this sort of issue. I've got no doubt in an ideal world that those safety precautions should be adhered to, but I've also got no doubt that if they were adhered to then, in reality, hardly anything would ever get done. Because if a truck driver never moved his truck a centimetre until he knew where everyone was, the truck would sit there all day.
So it's a balancing act that has to try and take into account the proper aim of this legislation which is to ensure that people don't take reckless risks in regard to the safety of others. At the time it has to be applied in what I would say is a common sense and realistic way.
…
I appears to me you're dealing with very slight tolerances when you consider the length of the trailer, the size of the truck and so on. And I am not satisfied at the end of the day if you look at this issue objectively that the prosecution have proven their case. It's a situation where it's a combination of circumstances. The prosecution's own evidence, the photograph which has been produced, indicates on the photograph - the opinion of the person putting it there - that this is where truck drivers normally lift the draw bar and you would expect, I would expect, that would normally be the case; that you would pick it up from the side rather than at the end.
And again, I'll say there's no implied criticism of Mr McCaw but it appears to me in all the circumstances, as I said, the prosecution have not proven each of the elements of the offence and accordingly the complaint is dismissed."
From the decision of the learned Magistrate, Hasluck J gave the appellant leave to appeal on 12 July 2000 on the following grounds:
"(a)the learned Magistrate erred in dismissing the complaint in that he erred in law in finding that the proper aim of the Occupational Health and Safety Act 1984 was to ensure that people don't take reckless risks in regard to the safety of others;
(b)the learned Magistrate erred in law in dismissing the complaint in that he failed to find that reversing the prime-mover and trailer only in circumstances where the person assisting the defendant as a guide was in view of the defendant was a reasonable step that the defendant could have been taken to avoid adversely affecting the safety of that other person; and
(c)the learned Magistrate erred in law in dismissing the complaint in that he failed to find that the defendant had not taken reasonable care to avoid adversely affecting the safety of another person."
The first ground of appeal should be upheld. The learned Magistrate did misunderstand the objects of the Act. They are set out in s 5 and (relevantly) are as follows:
"5.Objects
The object of this Act are -
(a)to promote and secure the safety and health of persons at work;
(b)to protect persons at work against hazards;
(c)to assist in securing safe and hygienic work environments;
(d)to reduce, eliminate and control the hazards to which persons are exposed at work … "
In Leighton Contractors Pty Ltd v Ridge, unreported; SCt of WA (Miller J); Library No 980650; 23 November 1998, I applied a number of passages from the judgment of Hungerford J in Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 (at 49 ‑ 50) where, in relation to the provisions of a like Occupational Health and Safety Act, his Honour said:
"I think it notorious that workplaces have the potential to be unsafe and building sites, by their inherent nature, are certainly no exception. It may be undoubted, it seems to me, that the legislature had that in mind in enacting the Occupational Health and Safety Act which, as its long title states, has the purpose 'to secure the health, safety and welfare of persons at work'; the objects of that Act in s5(1) emphasise the point. And, so, Div 1 - General Duties of Pt 3, which includes s16(1), of the Occupational Health and Safety Act was passed to effect the apparent purpose by creating absolute obligations on the relevant persons to remedy and protect against the perceived mischief of risks to health, safety and welfare in the workplace."
I accept the submissions of counsel for the appellant that the policy of the Act encompasses requiring employees to take care for their own safety and for the safety of others. Section 20(1) of the Act is an important provision and is in the following terms:
"20. Duties of employees
(1)An employee shall take reasonable care -
(a)to ensure his own safety and health at work; and
(b)to avoid adversely affecting the safety or health of any other person through any act or omission at work."
The section was described by Murray J in Wasley v Green, unreported; SCt of WA (Murray J); Library No 940380; 28 July 1994 (at 3) as "clearly a central provision for giving effect to [the] legislative policy" set out in the objects of the Act.
There can be no doubt that the learned Magistrate applied the wrong test in determining that the aim of the legislation was to ensure that people "don't take reckless risks in regard to the safety of others".
The second and third grounds of appeal can be dealt with together. They contest the decision of the learned Magistrate to dismiss the complaint by concluding that the prosecution had failed to prove each of the elements of the offence alleged. Although the learned Magistrate spoke of the need to apply an objective test, there is nothing in his reasons to indicate exactly why he concluded that the prosecution had failed to establish an absence on the part of the respondent to take reasonable care to avoid adversely affecting the safety of another person. As best I can interpret his Worship's reasons, it appears that he concluded that, because of the very "slight tolerances" involved in the process of backing a truck and trailer onto another trailer, there was a "combination of circumstances" which could have led to the respondent's injury other than a failure on the part of the respondent to take reasonable care to avoid adversely affecting the safety of another.
Counsel for the respondent relied upon the following statement in "Occupational Health and Safety Law in Victoria (2nd edn)" Creighton & Rozen (1997), at [580], for an interpretation of the meaning of the words "reasonable care" in the section. That paragraph is in the following terms:
"It seems likely that a court faced with having to assess whether an employee exercised "reasonable care" in a particular instance would have regard to all the circumstances of the case including what in a practical sense the employee could have done or refrained from doing; the employee's experience, position and training; the hard to be prevented, and any other relevant features of the particular case."
I am prepared to accept that this is a proper definition of "reasonable care" for the purposes of the case.
I accept the submission of counsel for the appellant that, in the circumstances of this case, the reversal of the prime-mover and trailer towards the second trailer required the respondent to ensure that McCaw was in a position where he was well out of the way of the reversing vehicle and within view of the respondent. This was particularly so having regard to the fact that the activity was taking place late at night when it was dark and, although the prime-mover and trailer were equipped with lights (particularly reversal lights on the prime-mover), there were "dark spots" according to the respondent. In addition, there was a distance of 40 feet from the position of the respondent in the cab of the prime-mover to the trailer which was to be attached. The witness Rolls had given evidence of standard operating procedures, indicating that a driver in the position of the respondent should at all times ensure that he can see a person who is guiding him in the reversing operation. Further, the standard operating procedure requires that a truck should never be reversed when a person who is assisting is out of view of the driver. These were obvious safety precautions and reasonable steps which the respondent could have taken to avoid adversely affecting the health or safety of McCaw. Insofar as the learned Magistrate failed to take them into account, or hold that they were reasonable steps that could be taken, he did, in my view, err in law.
The learned Magistrate appears to have attributed the cause of the accident largely to the activity of McCaw in lifting the draw bar in the way in which he did. Although he pointed out that there was no implied criticism of McCaw, this seems to have been the essential finding of fact which underlay his Worship's reasons. There is, however, clear authority that the obligation which is imposed upon an employee such as the respondent is to take reasonable care to avoid adversely affecting the safety or health of another person (including any other employee) in that account must be taken of the fact that other employees may from time to time "drop their guard". It was so held by Parker J in Green v Mabey t/as H Mabey & Co, unreported; SCt of WA (Parker J); Library No 940711; 7 December 1994, where (at 6) his Honour said:
"The object of this legislation is to make workplaces safe from real, foreseeable and avoidable risks and it is upon the employer that that obligation is placed because the course of human experience is that even careful and conscientious employees, from time to time, will drop their guard."
The question whether or not McCaw had contributed to the occurrence of the injury was no answer to the question whether the respondent had taken reasonable care to avoid adversely affecting the safety or health of another person.
I accept the submission of counsel for the appellant that there was ample evidence that the respondent in this case had indeed failed to take reasonable care to avoid adversely affecting the safety or health of McCaw. This was because he reversed the prime-mover without first ensuring that McCaw was in a position where he could be seen by the respondent as the vehicle reversed. He quite frankly stated that he did not know where McCaw was when he began to reverse the prime-mover, and that, in my view, constituted sufficient evidence of a failure to take the reasonable care required of him.
I am therefore of the view that the appeal should be allowed; the decision of the learned Magistrate dismissing the complaint should be set aside; there should be an order that the respondent be convicted of the charge and the matter should be remitted to the Court of Petty Sessions at Armadale for determination of penalty. That determination can be made by the same, or a different, Magistrate. The parties should be given the opportunity to make submissions as to the appropriate penalty to be imposed.