Silent Vector Pty Ltd v Shepherd - [2003] WASCA 315

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: SILENT VECTOR PTY LTD -v- SHEPHERD & ANOR [2003] WASCA 315

CORAM: PULLIN J

HEARD: 7 OCTOBER 2003

DELIVERED : 15 DECEMBER 2003

FILE NO/S: SJA 1038 of 2003

MATTER :The Justices Act 1902

BETWEEN: SILENT VECTOR PTY LTD (ACN 009 179 168)
Appellant
TANYA GAI SHEPHERD
Respondent
TANYA GAI SHEPHERD
Respondent By Ex Parte

Catchwords:

Occupational health and safety - Whether appellant as person in control of workplace failed to take practicable measures to ensure workmen not exposed to hazards - Turns on own facts

Legislation:

Occupational Safety and Health Act 1984, s 22(1)(a)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     Mr A S Derrick
Respondent:     Ms C J Thatcher
Respondent By Ex Parte :     Ms C J Thatcher

Solicitors:

Appellant:     Godfrey Virtue & Co
Respondent:     State Crown Solicitor
Respondent By Ex Parte :     State Crown Solicitor

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

Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249
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
Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304
Wylie v South Metropolitan College of TAFE [2003] WASCA 34

Case(s) also cited:

Ertech Pty Ltd v Reid, unreported; SCt of WA (White AJ); Library No 9174; 6 December 1991
Morrison v Atlas Group Pty Ltd, unreported; SCt of WA (Scott J); Library No 960698; 12 December 1996
R v Australian Char Pty Ltd (1995) 79 A Crim R 427
WorkCover Authority of NSW (Inspector Guillarte) v Industrial Galvanizers Corp Pty Ltd [2002] NSWIRComm 192
Workcover Authority of NSW v Waugh (1995) 59 IR 89

PULLIN J: The appellant was convicted by Mr R K Black SM in the Perth Court of Petty Sessions on 12 March 2003 of the offence that on 13 October 1999, the appellant, trading as Sizer Builders:
"Being a person who had control of a workplace where persons who were not his employees worked, failed to take such measures as were practicable to ensure that the workplace was such that persons who were at the workplace were not exposed to hazards; contrary to Sections 22(1)(a) and 22(4) of the Occupational Safety and Health Act 1984."
Particulars of the charge were given and were that Ian Stampaglia was the person who was not the appellant's employee; that the hazard to which he was exposed was the risk of falling 3.8 metres from the roof of the premises at 20 Bay View Terrace, Claremont; and that the practicable measures which could have been taken were the installation of edge protection of a minimum of 900 millimetres high along the edge of the roof or the use of fall arrest equipment by Mr Stampaglia.
The appellant appeals on the ground that the learned Magistrate was alleged to have "made an error of fact and law in finding, against the weight of the evidence, that the Applicant did not take such measures as were practicable to ensure that persons who were at the workplace were not exposed to hazards".
Particulars of the ground of appeal were as follows:
"(a)The [appellant] did not know, nor ought it to have known, that any person would be on the roof, or that any work was going to be undertaken on the roof, on the day in question.
(b)The [appellant] did not know, nor ought it to have known, that the work undertaken by Stampaglia on the day in question had not already been completed and therefore needed to be undertaken.
(c)The [appellant] did not know, nor ought it to have known, that either roof edge protection or a static line to which a harness could be affixed needed to be provided to Stampaglia or any other person at the workplace given that:
(i)the roofing contractor had not previously requested the [appellant] to provide any safety equipment at the workplace;
(ii)the employees of the roofing contractor had previously, to the knowledge of the [appellant] and in accordance with the roofing contractor's contractual obligation to the [appellant] and common industry standards, provided and used their own safety equipment whilst working on the roof;
(iii)Stampaglia had previously, to the knowledge of the [appellant], used his own safety equipment whilst working on the roof, namely a safety harness attached to suitable parts of the building structure; and
(iv)Stampaglia, prior to undertaking the work, could have affixed his safety harness to suitable parts of the building structure.
(d)The roofing works had progressed to the point where installation of edge protection would require the removal of side boards."
The following facts as found by the learned Magistrate are not in dispute. The appellant was a company which had control of the workplace at 20 Bay View Terrace, Claremont, where a new building was being constructed. Ian Stampaglia, an employee of Coastal Contractors Pty Ltd, was working at the workplace on 13 October 1999. Coastal Contractors Pty Ltd had contracted with the appellant to provide roofing and plumbing in relation to the workplace. Mr Stampaglia was observed by a Worksafe inspector to be working on the upper roof of the building. A parapet wall extended above the roof level. At some places it was over a metre above the roof level, but because the roof sloped the situation was that at the point where he was observed working in the south‑west corner of the upper roof, the parapet wall only extended 400 mm above roof level. The Worksafe inspector gave uncontradicted evidence about the fact that Mr Stampaglia was exposed to the risk that he could fall from the roof which could have led to serious injury. The learned Magistrate found that this was a distance of 3.6 metres to the level below (if he fell from the western side of the roof). If he fell over the parapet, the distance to the ground was much further. The Worksafe inspector gave uncontradicted evidence that Mr Stampaglia was not wearing any safety harness or fall‑arrest equipment and that there was no edge protection equipment to prevent him from falling. Mr Stampaglia gave uncontradicted evidence that he had a safety harness in his car which he did not use on the day because there were no anchor points to which he could attach his harness and because he did not have the competency to install such anchor points. Mr Stampaglia, when working on the roof before 13 October 1999, had looped his harness lanyards around the stud wall. He gave uncontradicted evidence that he could not have done that for the work he was performing on 13 October 1999.
The Worksafe inspector gave evidence that edge‑protection equipment to a height of 900 millimetres was readily available. Edge‑protection systems, consisting of a top rail and mid rail and kickboard to a height of 900 millimetres, cost about $250 for 10 metres. The Worksafe inspector gave evidence that a fall‑arrest system consists of a static line attached to an anchor point and attached to the workmen via a harness. In any event, as I have said, Mr Stampaglia had this equipment but there was no anchor point to which he could attach his equipment.
The learned Magistrate found that it was reasonably practicable to place edge protection at the point where Mr Stampaglia was working. The appellant challenges that conclusion.

Statutory Provisions and Legal Principles Applicable

The word "practicable" used in s 22 of the Act is defined in s 3 of the Act to mean:
"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)."
The word "risk" is also defined in s 3 of the Act to mean:
"In relation to any injury or harm, means the probability of that injury or harm occurring".
As their Honours, Gleeson CJ, Gummow and Hayne JJ said in Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304, the words "reasonably practicable" are ordinary words bearing their ordinary meaning, and the statutory definition in this case corresponds with the ordinary meaning.
The section does not impose strict liability on the appellant: Wylie v South Metropolitan College of TAFE [2003] WASCA 34 at [45]. The word "probability", which is used in the definition of the word "risk" and which is, in turn, used in the definition of "practicable", means no more than the likelihood of injury occurring: Hamersley Iron Pty Ltd v Robertson, unreported; SCt of WA (Steytler J); Library No 980573; 2 October 1998 at 18 per Steytler J.
The "state of knowledge" referred to in subsection (b) of the definition of "practicable" is that possessed by persons generally who are engaged in the relevant field of activity and not the actual knowledge, in fact, possessed subjectively by a specific defendant in particular circumstances: Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 261 and Hamersley Iron Pty Ltd v Robertson (supra) at 22. The conduct of the person in control of the workplace must be judged objectively. The prosecution, in order to secure a conviction under s 22(1), must prove either that the defendant actually knew of the risk of injury or harm to health occurring or that a reasonable person in the position of the defendant would have appreciated or foreseen the risk (that is the probability) of the injury or harm to health occurring: Chugg v Pacific Dunlop Ltd (supra) at 265.
I will go immediately to particular (d) of the ground of appeal, namely that the roofing works had progressed to the point where the installation of edge protection would require the removal of "side boards" (which I have earlier referred to as edge protection). The Magistrate did not refer to the uncontradicted evidence of Mr Sizer, who was a director of the appellant, to the effect that if the edge protection had been installed, then Mr Stampaglia would have had to remove this when the flashing was to be installed, so that the only option was the use of a harness.
That being so, it could not be said that an edge‑protection system would have been practicable. Even if the edge‑protection system had been installed, then at the point where Mr Stampaglia was to carry out the work to install the flashings (which is what he was doing when he was observed by the Worksafe inspector on 13 October 1999), he would have had to remove the edge‑protection system, and the situation would have been as it was when the Worksafe inspector attended on site.
In my view, the learned Magistrate therefore fell into error in concluding that the offence was committed because edge protection was not in place.
That, however, is not the end of the matter. This is because s 199(1) of the Justices Act 1902 states that this Court may, upon the hearing of an appeal, dismiss an appeal notwithstanding that any point raised on the appeal might be decided in favour of the appellant, if it considers that no substantial miscarriage of justice has occurred. In my opinion, even though the learned Magistrate did make the error that I have referred to, there is no substantial miscarriage of justice.
It was very much a part of the respondent's case that in the alternative to providing an edge‑protection system, it was practicable for the appellant to have ensured that fall‑arrest equipment was used by Mr Stampaglia. Indeed, Mr Stampaglia had fall‑arrest equipment in the form of a harness and lanyards, but he could not use it for the work that he was doing. The Worksafe inspector gave evidence that for this type of roof, anchor points could have been provided in the concrete or could have been attached to the roof sheets. These harnesses were readily available and cost about $400, or $900 for "more fancy" equipment. Mr Stampaglia, in cross‑examination and in re‑examination, explained that the lanyards were "looped around the stud wall" when he worked on the roof before 13 October 1999, but while installing the flashings it was not possible to attach the lanyards to the stud wall. In cross‑examination, it was put to him that he could have used his harness if he had chosen to, and he answered: "If it had anchor points I could have because once I put the flashing on that then becomes [sic] up against a stud wall, so you can't loop your static line around there".
The prosecution therefore established that it was practicable for the appellant to have ensured that fall‑arrest equipment was used by Mr Stampaglia. This required anchor points to be installed, but the appellant did not ensure that these were installed. The use of the fall‑arrest equipment would have afforded an inexpensive, and therefore practicable, protection against the risk of falling from the roof.
There is, however, still the question about what the appellant knew or ought to have known. As I have already said, the prosecution must prove either that the defendant actually knew of the risk of injury or harm to health occurring or that a reasonable person in the position of the defendant would have appreciated or foreseen the probability of injury or harm to health occurring.
Mr Hughes, who was the appellant's employee most concerned with the conduct of affairs on the site, said that he was not aware that the flashings had not been affixed and that he "thought" that the whole top roof had been completed and that was why the roofing contractors were "coming down to mesh the bottom roof". He said that this appeared to be so from his view from underneath the building. He also gave evidence that he did not give Mr Stampaglia permission to go onto the roof without safety equipment; that if he had seen Mr Stampaglia on the roof without safety equipment, he would have ordered him to come down; that whenever he had observed Mr Stampaglia and other employees working, they were wearing safety harnesses and safety gear; and that he was aware that those persons had been using the stud wall and purlins as anchoring points for their harnesses.
Mr Hughes did not give evidence that he thought that the flashings had been installed. His evidence was only that he thought the roof had been completed. In my opinion, even if he meant that he thought the flashing had been installed, this evidence is no answer to the charge. That evidence does not meet the point that a reasonable person in the position of the appellant via its employees ought to have known about the risk. Merely "thinking" that work has been done, without any factual foundation for forming that view, is not sufficient. Mr Hughes did not state any foundation for his belief that the work to install the flashings had been carried out.
I note from the evidence that Mr Sizer said that it was his practice to ensure that safety was "ensured on the site". Mr Hughes said: "We have meetings once every couple of months with safety officers and you go through all that stuff with us". There was, however, no evidence about safety issues being discussed with sub‑contractors, and with Coastal Contractors Pty Ltd in particular. If there had been evidence about safety meetings being held with Coastal Contractors Pty Ltd concerning safety and concerning the steps to be taken by the sub‑contractor concerning safety, then this may have been significant evidence. Such a meeting may have resulted in assurances by the sub‑contractor to the appellant about steps it would take to ensure the safety of its workers. An item for discussion at such a meeting should have been about who would install anchor points for harnesses to be used by roof workers. That may have resulted in the appellant installing the anchor points or may have resulted in the sub‑contractor promising to do so. If the latter, then the appellant would have been obliged to check to see that the promise had been fulfilled. If the anchor points had been installed and if the appellant then saw that safety procedures agreed to were being followed, then the fact that on one day when Mr Hughes was not in attendance the safety procedures were not followed, may not have afforded any evidence to sustain the charge.
On the evidence in this case, however, I find that the appellant did nothing. It considered that signing up Coastal Contractors Pty Ltd was enough. However, the contractual provisions which required Coastal Contractors Pty Ltd to comply with its obligations in relation to occupational safety did not discharge the appellant of its duty. The fact that Mr Hughes said he would have ordered Mr Stampaglia down from the roof if he saw him going onto the roof without his safety gear is not proactive conduct. The appellant cannot show that it ensured that Mr Stampaglia was not exposed to hazards by showing that it did nothing at all. Having the right intention or attitude to safety is not enough. The attitude must be backed up by action. It does not matter in the circumstances that the appellant did not know that Mr Stampaglia would be on the roof at the time that he was. The flashings had to be installed because it was part of the appellant's contract, even though it was work sub‑contracted to Coastal Contractors Pty Ltd.
I find that without the anchor points, a safety harness could not be used. I find that the appellant failed to take the practicable step of installing anchor points or causing them to be installed. The onus was on the prosecution to make out the charge beyond a reasonable doubt: Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100. In my opinion, it made out its case to the required standard. As was noted in Chugg v Pacific Dunlop Ltd (supra) at 261, in a good many cases "the practical evidentiary burden will … fall on a defendant (because) … evidence as to the nature of the risk, the cause of the risk or means by which the risk may be avoided will often be all that is necessary to ground an inference that practicable means of avoiding the risk were not taken". In my opinion, none of the evidence led on behalf of the appellant displaced the direct proof that practical means of avoiding the risk were not taken and the proof by inference that a reasonable person in the position of the appellant would have known of the risk of injury occurring. The fact that the appellant did not know that any person would be on the roof on the day in question; that the roofing contractor had not previously requested the appellant to provide any safety equipment; and that on some previous occasions to the knowledge of the appellant, the roofing contractor's employees, including Stampaglia, provided and used their own safety equipment while working on the roof; provide no answer to the charge. All this establishes is that this appellant had no knowledge of the risk. Mr Sizer gave evidence that an edge‑protection system could not be used in relation to the installation of the flashing. Thus, a reasonable person in the position of the appellant would have known that fall‑arrest equipment would have to be used, and if any enquiry had been made of the roofing contractor, the appellant would have learned that it was not possible to use the fall‑arrest equipment when installing the flashing unless proper anchor points were installed. No enquiry was ever made by the appellant. Section 22 imposes a duty to be proactive.
The fact that the appellant knew that Coastal Contractors Pty Ltd had a contractual obligation to comply with obligations imposed by the Act and to supply safety equipment, is no answer to the charge. The sub‑contractor is an employee of men and has duties under the Act quite separate from those obligations imposed on the appellant as a person in control of a workplace. The appellant had a duty to take positive steps to ensure practicable methods of reducing risks of injury. That duty cannot be delegated to others in a way which avoids liability under the Act.

A reasonable person in the position of the appellant would have known that there was a risk of severe injury which could easily occur if a person worked without any protection at all on the edge of a roof 3.6 metres above the next level. Such a person would have known that a harness would remove or mitigate the risk to injury. The appellant failed to ensure that this practicable method of removing or mitigating the risk was taken.
For those reasons, the appeal should be dismissed.