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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Silent Vector Pty Ltd v Shepherd

Details

AGLC: Silent Vector Pty Ltd v Shepherd [2003] WASCA 315
Case: [2003] WASCA 315
Decision Date: 15 DECEMBER 2003

CaseChat Overview and Summary

Silent Vector Pty Ltd, the appellant, brought a case against Shepherd, the respondent, regarding alleged breaches of occupational health and safety regulations. The dispute centred on whether the appellant, as the entity in control of the workplace, failed to implement practical measures to prevent exposure of its workers to hazardous conditions. The matter was heard and determined by the relevant court of appeal in Australia. The court was tasked with assessing whether the appellant's actions met the required standards of occupational health and safety, specifically if the appellant neglected to take feasible steps to ensure the safety of its employees.

The central legal issues revolved around the interpretation and application of occupational health and safety laws. The court needed to determine the precise obligations of an employer under these laws and whether the appellant fulfilled those obligations. Additionally, the court had to consider the meaning of "practicable measures" and assess whether the measures taken by the appellant were indeed practicable in the given circumstances. The crux of the dispute lay in the balance between the feasibility and effectiveness of the safety measures implemented by the appellant.

In its decision, the court examined the specific facts of the case to ascertain whether the appellant had fulfilled its duties under the occupational health and safety legislation. The court took into account the nature of the hazards present in the workplace, the measures implemented by the appellant to mitigate these hazards, and whether these measures were deemed practicable. The court concluded that the appellant had indeed failed to take all reasonably practicable steps to ensure the safety of its workers, thereby breaching the occupational health and safety regulations. The court's reasoning was grounded in a detailed analysis of the evidence presented and the legal standards applicable to the case.

Following its findings, the court upheld the decision of the lower court, affirming the liability of the appellant. Consequently, the appeal was dismissed. The court did not impose any further orders beyond affirming the original decision, which included penalties and compliance directives for the appellant to address the safety deficiencies identified in the case.

Orders