St Vincent's Care Services Ltd v The Queen
[2022] VSCA 186
•2 September 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2021 0137 |
| ST VINCENT’S CARE SERVICES PTY LTD (ACN 055 210 378) | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST, BEACH and MACAULAY JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 August 2022 |
| DATE OF JUDGMENT: | 2 September 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 186 |
| JUDGMENT APPEALED FROM: | [2021] VCC 1035; [2021] VCC 1315 (Judge O’Connell) |
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CRIMINAL LAW – Conviction – Appeal – One charge of failing to ensure that people other than employees were not exposed to risks to health and safety arising from the conduct of an undertaking – Residential care facility permitting residents to leave facility with having monitored ‘sign out/sign in’ register – Whether conviction unreasonable or unable to be supported – Prosecution failing to prove there was a risk to health and safety arising from applicant’s undertaking – Prosecution failing to prove that applicant failed to take a reasonably practicable measure that would have eliminated or reduced risk.
Occupational Health and Safety Act 2004, ss 20 and 23(1) – Criminal Procedure Act 2009, ss 276(1)(a) and 420F(2).
M v The Queen (1994) 181 CLR 487, Dansie v The Queen [2022] HCA 25, applied; R v Associated Octel Co Ltd [1996] 1 WLR 1543, DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676, referred to.
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| Counsel | |||
| Applicant: | Mr BW Walker SC with Mr RW O’Neill | ||
| Respondent | Mr PJ Doyle SC with Ms MJ Brown | ||
Solicitors | |||
| Applicant: | Minter Ellison | ||
| Second Respondent | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
BEACH JA
MACAULAY JA:
The applicant is the operator of an aged care facility known as St Vincent’s Care Werribee (‘the facility’). In February 2018, William Keating became a resident at the facility. At the time, he was 88 years of age and, according to his daughter, Jennifer Luckhurst, did not have dementia, ‘was really with it’, and was not being treated for any medical ailments.
At approximately 8.30 am on Saturday 10 March 2018, Mr Keating left the facility for a walk, taking a newspaper with him in the basket of his walker. At about 9.30 am, Ms Luckhurst and her husband arrived at the facility for the purpose of visiting Mr Keating. They discovered that he was not in his room and began searching for him. At around 11 am, Mr Keating was found about 100 metres from the facility, having fallen into an area under excavation. As a result of his fall, Mr Keating was badly injured and required hospitalisation.
On 30 July 2021, following a judge alone trial, a judge of the County Court found the applicant guilty of one charge of failing to ensure persons other than employees were not exposed to risks to their health and safety arising from the conduct of the applicant’s undertaking, contrary to s 23(1) of the Occupational Health and Safety Act 2004 (‘the OHS Act’).[1] On 14 September 2021, the applicant was sentenced to pay a fine of $25,000 without conviction.[2]
[1]DPP v St Vincent’s Care Services Ltd [2021] VCC 1035 (‘Conviction Reasons’).
[2]DPP v St Vincent’s Care Services Ltd [2021] VCC 1315 (‘Sentencing Reasons’).
The applicant now seeks leave to appeal on the following proposed grounds:
1.The verdict of the court is unreasonable or cannot be supported having regard to the evidence, in that the prosecution failed to prove that there was a risk to health and safety arising from the conduct of the undertaking of the applicant.
2.The verdict of the court is unreasonable or cannot be supported by the evidence, in that the prosecution did not prove that the applicant failed to take a reasonably practicable measure that would have eliminated or reduced the risk.
The offence created by s 23(1) of the OHS Act
Section 23(1) is contained in Pt 3 of the OHS Act. The section relevantly provides:
An employer must ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.[3]
The words ‘employer’ and ‘employee’ are defined in s 5(1) of the Act. ‘Employer’ is defined to mean ‘a person who employs one or more other persons under contracts of employment or contracts of training’; and ‘employee’ is relevantly defined to mean ‘a person employed under a contract of employment or contract of training’. The word ‘undertaking’ is not defined.[4]
[3]Section 23(2) of the OHS Act provides that an offence against s 23(1) is an indictable offence.
[4]For completeness, we note that ‘health’ is defined in s 5(1) to include ‘psychological health’.
Section 20, also contained in Pt 3 of the Act, deals with two topics: first, in sub-s (1), the concept of ensuring health and safety; and secondly, in sub-s (2), the question as to what matters regard must be had when determining whether a particular measure was reasonably practicable. Section 20 provides:
(1)To avoid doubt, a duty imposed on a person by this Part … to ensure, so far as is reasonably practicable, health and safety requires the person—
(a)to eliminate risks to health and safety so far as is reasonably practicable; and
(b)if it is not reasonably practicable to eliminate risks to health and safety, to reduce those risks so far as is reasonably practicable.
(2)To avoid doubt, for the purposes of this Part … , regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety—
(a) the likelihood of the hazard or risk concerned eventuating;
(b)the degree of harm that would result if the hazard or risk eventuated;
(c)what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;
(d)the availability and suitability of ways to eliminate or reduce the hazard or risk;
(e) the cost of eliminating or reducing the hazard or risk.
Thus, the offence created by s 23(1) has the following elements:
(i)the accused was an employer at the relevant time;
(ii)there was a risk from the conduct of the accused’s undertaking to the health and safety of non-employees;
(iii)the accused failed to take an identified measure which would have eliminated or reduced that risk; and
(iv)it was reasonably practicable in the circumstances for the accused to have taken that measure.
The charge on which the applicant was convicted
The charge upon which the applicant was tried was as follows:
[A]t Werribee … on 10 March 2018 as an employer [it] failed, so far as was reasonably practicable, to ensure that persons other than employees were not exposed to risks to their health and safety arising from the conduct of its undertaking.
The charge was particularised in the following terms:
(a)[The applicant], is and was at all relevant times an employer within the meaning of section 5 of [the OHS Act] employing Munro Westraadt.
(b)[The facility] was at all relevant times operated by [the applicant], providing care to residents, including [Mr Keating].
(c)[The applicant] failed to provide an appropriate procedure to monitor residents leaving the facility unsupervised for short periods.
(d)There was a risk of injury or death due to residents leaving the facility without being appropriately monitored insofar as, if any resident was injured or became ill whilst outside the facility, that resident may not be detected as absent at the earliest possible time.[5]
(e)It was reasonably practicable for [the applicant] to ensure that persons other than [its] employees were not exposed to risks to their health and safety, by providing a monitored ‘Sign out/Sign in’ register recording the name of the resident, the time they left the facility, the expected time of return, the destination, the actual time of return, whether they were accompanied and their signature.
(f)Persons exposed to risk of injury or death included, but were not limited to, [Mr Keating].
[5]Emphasis added.
The trial
Prosecution opening
In opening the case against the applicant, the prosecutor asserted that, by its very nature, the facility was a residence for people more vulnerable, ‘by reason of their medical problems, mental issues or simply a decrease in mobility occasioned by getting to be of a certain age, than other members of [the] community’. The prosecutor then said:
Residents differed markedly as to the assistance they wanted or needed but each of them was in the facility because they wished to rely on the assistance and care that it could offer to them in one way or another.
The prosecutor said that the applicant had been charged because:
[T]he prosecution alleges that the accused on 10 March 2018, was an employer, that there was a risk to health and safety arising from the conduct of their undertaking of operating an aged care facility to persons other than employees, including Mr Keating, that the accused [the applicant] failed to take identified measures which would have eliminated or reduced that risk, and that it was reasonably practicable in the circumstances for the accused to have taken those measures.
The prosecutor summarised the evidence that would be called, before identifying ‘the prosecution allegations [against the applicant]’ in the following terms:
As an employer conducting the undertaking of operating an aged care facility the prosecution alleges that the accused failed to have in place an appropriate system to monitor residents leaving the facility unaccompanied or unsupervised for a short period.
By not recording the time of departure, the expected time of return, the destination and the actual time of return the accused was exposing persons other than employees, the residents, including Mr Keating, were exposed to risk of injury or death. Such exposure arose because as there was no system in place to know how long a resident was likely to be absent for, or an estimated time of return, there was no mechanism whereby staff could realise that a resident should be looked for, and to ascertain whether any delayed return might be caused by the resident having been injured or worse. The longer that it was not realised that a non-employee resident was missing, and that therefore that no effort was being made to search for or locate the resident, the greater the exposure to risk of injury, aggravation to illness or injury, or death to that person.
The evidence at trial
No witnesses were called to give evidence at trial. The evidence was entirely documentary. The Crown case consisted of the prosecutor tendering:
•a statement made by Ms Luckhurst (Exhibit A);
•a statement made by Munro Westraadt (the employee of the applicant referred to in para (a) of the particulars of the charge) (Exhibit B);
•CCTV video footage taken on 10 March 2018 at the facility and in the carpark showing Mr Keating leaving the facility (Exhibit C);
•photographs and a satellite image of the area where Mr Keating fell (Exhibit D);
•‘falls risk assessment tools’ created and modified in February and March 2018 relating to Mr Keating (Exhibits E and F);
•a WorkSafe improvement notice issued to the applicant on 14 March 2018 (Exhibit G); and
•the applicant’s procedure document dealing with residents leaving the facility, dated 9 April 2018 (Exhibit H).
The only evidence tendered by the applicant was a six-page care plan relating to Mr Keating, dated 21 March 2018 (Exhibit 1).
Ms Luckhurst’s statement (Exhibit A) contained the following evidence:
•Mr Keating moved into the facility on about 21 February 2018. His medical condition was ‘pretty good’. He was active, self-sufficient, and showered and dressed on his own. He did not have dementia. He was ‘really with it’. He was not being treated for any medical ailments.
•When she visited Mr Keating, she (and anyone with her) signed in the book at the front counter, before going up to see him. On the first few occasions that she visited, they went for a walk with Mr Keating around the outside of the building. When she took Mr Keating outside, she told a staff member that they were leaving, but she did not sign Mr Keating out if they were only going for a walk. If Mr Keating was being taken out in a car then he would be signed out and the staff informed. When they returned from a walk, they would take Mr Keating back up to his room, and advise the staff that he had returned, ‘but only if someone [was] around’.
•Mr Keating would always exit through the reception. He did not need a code to exit, and he did not use a code to get back in. Ms Luckhurst was not aware of any restrictions. She did not know if the staff were aware that her father was going for walks outside. He was ‘allowed to leave on his own free will’.
•At 9:30 am on 10 March 2018, Ms Luckhurst and her husband arrived at the facility to visit Mr Keating. He could not be found on the premises. They walked around the building, but could not find him. They went back into the facility and had a further look. By this time, staff were assisting in looking for him. At about 10:20 am, they looked at the CCTV for the reception area. It showed that Mr Keating had left the building at 8:38 am.
•Further searching outside the facility was undertaken. Ms Luckhurst’s husband noticed a newspaper flying up in the air, and they saw the top of Mr Keating’s head. They ran over. Other staff, police and an ambulance were called. The ambulance arrived at about 11:00 am. Mr Keating was in hospital for four weeks. He had trauma to his head and fractures. He required a skin graft. He returned to the facility in about the first week of April 2018.
Ms Westraadt’s statement (Exhibit B) contained the following evidence:
•She was a nurse who worked at the facility between December 2017 and March 2018.
•She was aware that Mr Keating was ambulant with a wheel frame. She saw him using the frame at all times. She was not aware that he went outside walking on his own. She never saw him walking outside with his family, but he may have done so.
•At some time around 8:15 or 8:30 am on 10 March 2018, Mr Keating asked her if she could change a dressing. She gave him a timeframe between 9:30 and 10:30. When she walked past his room at about 10:15 to 10:30, she saw his door was ajar. As she was going to get the dressings trolley, she ran into Ms Luckhurst who asked her if she knew where her father was. Ms Westraadt then joined in the search for Mr Keating.
•Ms Westraadt watched the CCTV footage with other members of staff on the ground floor, and saw that Mr Keating had left the building. She went to phone the police. While on the phone with the police, she was told by another staff member that Mr Keating had been found outside in a bad condition. She went to Mr Keating, who was then being looked after by a pathology nurse and Ms Luckhurst. Ms Westraadt took over from the pathology nurse. An ambulance was called, as was the manager of the facility.
The CCTV footage (Exhibit C) contained footage showing Mr Keating at the reception counter with a newspaper at 8:38 am. Mr Keating can be seen placing the newspaper in the basket of his walker and leaving the facility through the front door. The CCTV footage also shows Mr Keating in the carpark in front of the reception area, where he can be seen walking along the footpath at various points before moving out of view.
The photographs and satellite image (Exhibit D) show the construction site at which Mr Keating was found, including the 450 millimetre drop where he fell. The photographs show uneven and excavated ground, debris and incomplete temporary fencing around the site. The satellite image shows the construction site, indicating the distance from the front door of the facility to the place where Mr Keating fell as being 91.2 metres.
The two Falls Risk Assessment Tools (Exhibits E and F) state that Mr Keating had had one or more falls three to 12 months before March 2018. Next to the word ‘Medications’ on these exhibits were the words ‘Taking one’. Next to the words ‘Cognitive Status’ were the words ‘No or minimal cognitive impairment’. A box next to the words ‘Dizziness/Postural hypotension’ was ticked. In tendering Exhibits E and F, the prosecutor told the judge:
I tendered [them] for the purpose of simply showing that the accused was assiduous in its preparation of an assessment, and its updating of the document, even at the time when Mr Keating was in another hospital being treated for his injuries. And so, I’m really doing that to show that the accused was a company that was aware of and complied with its obligations in relation to Mr Keating.
As the prosecutor fairly conceded at trial, exhibits E and F had been amended on 13 March 2018, some three days after Mr Keating’s fall. Moreover, it is not apparent from the face of the documents, what amendments were made to them at that time.
The WorkSafe Improvement Notice (Exhibit G) was issued by Inspector Francis Zawila on 14 March 2018. The notice contained an assertion that s 23 of the OHS Act had been contravened on the basis that:
Persons other than employees are exposed to health and safety risk arising out of the conduct of the undertaking at the workplace.
I observed at this workplace that there is a risk to persons other than employees (residents) as no process has been provided to monitor residents leaving the facility unsupervised for short term reasons such as going for a walk or to an appointment, with regards to their return times, supervision requirements and destinations. There is a risk that a resident may suffer an illness or injury and their absence would not be detected which may result in the illness/injury becoming significantly more serious.
The notice directed the applicant to implement measures to protect residents from ‘risks arising from leaving the facility unsupervised’. It then stated:
Compliance may be achieved, but is not limited to, implementing a procedure whereby an assessment is made for any resident wishing to leave the facility unsupervised to ensure that they are able to do so and also a process for recording and monitoring the leaving and return times of the resident to ensure that they return as planned.
The prosecutor submitted to the trial judge that the improvement notice was relevant to the fourth element of the offence: namely, the reasonable practicability of steps that could have been taken to mitigate the risk said to exist.
The applicant’s procedure document dated 9 April 2018 (Exhibit H) dealt with residents leaving the facility. The document stated:
Whilst residents have a rights [sic] and freedom of choice regarding personal outings from the facility, [the applicant has] a responsibility to monitor the safe return of residents, as far as reasonably practical.
As the trial judge observed, the 9 April 2018 procedure document required the following:
•On admission or return to the facility, all residents be assessed to determine any risk factors associated with leaving the facility independently or with support, and that this information be recorded for future reference;
•A registered nurse discuss these risk factors with the resident and/or their family, and record their wishes in relation to the resident leaving the facility, independently or with support;
•On departing the facility, family escorts fill in the sign-in/out register, which shows (a) name of resident, (b) time out, (c) expected time of return, (d) destination, (e) actual time of return, (f) accompanied or not, and (g) signature;
•The Assistant in Nursing (AIN) on duty in the area in which the resident is living inform the registered nurse of the intended departure and expected time of return;
•The registered nurse or their delegate check the register periodically through the shift for the return of the resident;
•If the resident has not returned at the expected time and is unaccompanied, the registered nurse phone the resident or their next of kin to ascertain their wellbeing; and
•If contact cannot be made, the situation be escalated to the facility manager.[6]
[6]Conviction Reasons, [56].
The prosecutor submitted to the trial judge that the ‘relatively speedy’ implementation of this procedure following Mr Keating’s fall demonstrated that these measures were reasonably practicable, not prohibitively expensive, and should have been taken prior to 10 March 2018.
At the conclusion of the Crown case, the prosecutor advised the judge of the following agreed facts:
It is agreed that the facility consists of a number of different areas. One of those areas is a secure unit for residents diagnosed as suffering with dementia, and that unit requires keypad access or a swipe card for entry or exit. Also, that the facility has available to it and used wander alert bracelets, which can be fitted for residents assessed as being at risk of absconding or wandering.
The six-page care plan relating to Mr Keating (Exhibit 1) contained a number of headings. The applicant’s trial counsel tendered it during his final address. He relied upon the following extracts in it:
Bill [Mr Keating] will be able to participate in chosen social activities when he wishes.
…
Social support:
Attending large group activities, Encourage and assisted to build new friendships … .
Social activities to be participated in now and in the future may include
Going to clubs and hotels
Eating out
[and, in trial counsel’s words, some other activities that perhaps might take place within the facility, but social visits to other aged care facilities, happy hours].
Final addresses
In final address, the prosecutor submitted that the applicant had breached s 23 of the OHS Act by failing to act to reduce the risk of injury to non-employees. He put the prosecution case:
fairly and squarely on the basis that when you take on the responsibility of caring for a vulnerable elderly person, it is integral to providing that care that you monitor where that person may be. This was simply a matter of recording the exit and entry of those persons under your care into and out of the facility. What happened to Mr Keating is an illustration of what can go wrong when such a simple system is not in place.
[T]he risk the subject of the charge emanated from the failure of the accused to adequately monitor where those under its care were at any given time. The failure to know or record that Mr Keating had gone for a walk or his expected time of return on 10 March 2018 was a clear illustration of how the accused had breached s 23.[7]
[7]Ibid [62]–[63].
In his final address, counsel for the applicant submitted that the alleged risk identified by the prosecution did not arise from the conduct of the applicant’s undertaking (the second element of the offence). He contended that the real cause of Mr Keating’s injury was the failure of the building site operator to properly fence the site at which Mr Keating fell.
The applicant’s trial counsel submitted that the facility was Mr Keating’s home where he and other residents had rights to freedom of movement, independence and dignity. Additionally, he submitted that the underlying assumption of the prosecution case that ‘all residents are there because they’re vulnerable’ was ‘not backed up by evidence’. He also submitted that the prosecution had failed to prove that the proposed monitoring and recording measure was reasonably practicable or that it was a suitable means of managing the alleged risk without undue interference with residents’ human and statutory rights.
Finally, he pointed to the evidence of Ms Luckhurst that showed that the applicant had a sign-out procedure in place before Mr Keating’s fall.
The judge’s verdict
The judge concluded that ‘the accused’s undertaking involved caring for the vulnerable residents of its aged care facility’;[8] that ‘there [was] a risk created by not taking steps to ascertain when a resident leaves the facility, where they will be, and when they intend to return’;[9] that ‘a risk of injury, serious injury or even death arises from not detecting a resident, who is by definition vulnerable, as absent from the facility at the earliest possible time’;[10] that ‘providing a monitored “sign-out/sign-in register” recording the name of the resident, the time they left the facility, the expected time of return, the destination, the actual time of return, whether they were accompanied and their signature’ would have eliminated or reduced the risk;[11] and that this proposed measure was a ‘reasonably practicable means of addressing the identified risk to the health and safety of residents of [the facility]’.[12] The judge thus returned a verdict of guilty.[13]
[8]Ibid [101].
[9]Ibid [104].
[10]Ibid [106].
[11]Ibid [109], [114].
[12]Ibid [148].
[13]Ibid [150].
Unreasonable verdicts: principles to be applied
By reason of s 420F(2) of the Criminal Procedure Act 2009,[14] the judge’s verdict of guilty ‘has, for all purposes, the same effect as a verdict of a jury’. The applicant’s proposed grounds of appeal are based on s 276(1)(a) of the Criminal Procedure Act, which provides that the Court must allow an appeal if it is satisfied that the verdict is ‘unreasonable or cannot be supported having regard to the evidence’. This requires the Court to ask itself whether it thinks, on the whole of the evidence, the conclusion that the accused was guilty beyond reasonable doubt was open.[15] In determining that question, this Court must undertake an independent assessment of the whole of the evidence as to its sufficiency and its quality.[16]
[14]Inserted by s 32 of the COVID-19 Omnibus (Emergency Measures) Act 2020.
[15]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ); Dansie v The Queen [2022] HCA 25, [8]–[9] (Gageler, Keane, Gordon, Steward and Gleeson JJ) (‘Dansie’).
[16]Morris v The Queen (1987) 163 CLR 454, 473 (Deane, Toohey and Gaudron JJ); Dansie [2022] HCA 25 [12].
In Dansie, the High Court identified the approach to be taken by this Court where the trial had been by judge alone, as follows:
Where the trial has been by judge alone, the reasons of the trial judge must be approached by the court of criminal appeal performing that function with circumspection lest the findings of fact made by the trial judge divert the court from undertaking the requisite independent assessment of the evidence. The court will be required to consider the arguments of the parties in the appeal and will be entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings. But the question for the court in every case will remain whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the trial judge can be taken to have had by reason of having seen and heard the evidence at trial.
The advantage that a trial judge might have had over a court of criminal appeal by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced at the trial and depending on the nature of the issues that arose at the trial. In a case such as the present, where the prosecution case was circumstantial, where the evidence adduced by the prosecution was largely uncontested and for the most part in the form of transcripts of unchallenged testimony, and where the appellant did not give evidence, the advantage must be slight.[17]
Proposed ground 1: did the prosecution prove that there was a risk to health and safety arising from the conduct of the undertaking of the applicant?
Applicant’s contentions
[17]Ibid [16]–[17].
The applicant contended that no relevant risk to the health or safety of residents at the facility arose from the conduct of its undertaking. In support of that contention, it submitted that the risk pleaded in para (d) of the particulars of the charge suffered from three deficiencies.
First, the risk pleaded was ‘that residents may not be detected as absent at the earliest possible time’ — a risk which was not a risk to health and safety. The applicant then submitted that the actual risk to health and safety arising out of the facts of the case was the risk of injury to Mr Keating occurring outside the facility. It submitted that that risk ‘plainly fell outside the conduct of the undertaking of the applicant’.
Secondly, even if one relied upon authority such as R v Associated Octel Co Limited,[18] the risk pleaded was ‘far outside even the “ancillary activities” referred to [in Octel]’. It was submitted that the risk did not arise from any activity of the applicant. As the applicant put it in its written case in this Court:
‘Residents leaving the facility’ was not conduct within the scope of the applicant’s undertaking. It was conduct of residents in their private capacity. It did not arise from anything done by the applicant in the course of operating the facility, however broadly assessed. But even if it had, the risk to health and safety did not arise from residents leaving the facility either; it arose from the hazards inherent in the wider world.
Nor did the actions of Mr Keating in leaving the facility generate the specific risk to his health and safety; it arose from the construction activities on the site where he was injured.
…
That in some cases an employer might have an opportunity, or even in some cases a duty of care, to mitigate a particular external risk does not transform that risk into one which arises from the conduct of its undertaking.
[18][1996] 4 All ER 846; [1996] 1 WLR 1543 (‘Octel’).
Thirdly, in including the phrase ‘without being appropriately monitored’ in para (d) of the particulars, the pleaded risk conflated the second and third elements of the offence in a way which was circular. It was submitted that a risk ‘cannot be defined by the measure that (perhaps) could have prevented it, or created by the absence of that measure’.
Respondent’s contentions
The respondent contended that the evidence called at trial was sufficient to prove that there was a risk to the health and safety of residents of the facility, and that the risk arose from the conduct of the undertaking of the applicant.
The respondent relied upon the objects set out in s 2(1) of the OHS Act, including:
(a)to secure the health, safety and welfare of employees and other persons at work; and
(b)to eliminate, at the source, risks to the health, safety or welfare of employees and other persons at work; and
(c)to ensure that the health and safety of members of the public is not placed at risk by the conduct of undertakings by employers and self-employed persons; …
The respondent submitted that it was plain that it was Parliament’s intention that in the administration of the OHS Act, regard should be had to the principles of health and safety protection set out in s 4, including:
(1) The importance of health and safety requires that employees, other persons at work and members of the public be given the highest level of protection against risks to their health and safety that is reasonably practicable in the circumstances.
(2) Persons who control or manage matters that give rise or may give rise to risks to health or safety are responsible for eliminating or reducing those risks so far as is reasonably practicable.
(3) Employers and self-employed persons should be proactive, and take all reasonably practicable measures, to ensure health and safety at workplaces and in the conduct of undertakings.
The respondent then submitted that, having regard to the legislative intent behind the OHS Act, it was open to the judge to interpret the term ‘undertaking’ in a broad way. Moreover, the analysis of the judge was correct when he concluded that part of the applicant’s undertaking involved knowing the whereabouts of residents under its care.[19]
[19]Conviction Reasons, [102].
Next, the respondent submitted that the judge’s ‘careful reasoning supports’ that it was open to the judge to find that the prosecution had proved to the requisite standard that the applicant’s undertaking created a risk.
Finally, the respondent submitted that the risk pleaded in para (d) of the particulars of the charge was not deficient in any way. The charge the applicant faced was not limited to Mr Keating but related to any resident of the facility. The risk to the health and safety of residents arose from the applicant’s failure to know where residents under its care were at any given time. It was submitted that, as the judge’s reasons made clear, the risk to residents of the facility was:
if the resident becomes injured, or ill whilst outside the facility in circumstances where they may not be detected and receive assistance at the earliest possible time if the applicant is unaware of their whereabouts.
Proposed ground 1: consideration
The risk alleged by the prosecution was a risk of additional injury or death which might be suffered by a resident who fell ill or was injured while away from the facility — such additional injury or death being caused by the failure to detect the resident as absent from the facility at the earliest possible time. The central issues under proposed ground 1 concerned the existence and extent of that alleged risk, and whether the risk was one that arose from the conduct of the undertaking of the applicant.
The first point to be made is that the risk alleged by the prosecution was one alleged at a high level of generality. It may immediately be observed that no such risk existed for residents diagnosed as suffering with dementia, where keypad access or a swipe card was required for entry or exit; and no such risk for residents ‘assessed as being at risk of absconding or wandering’, who had been fitted with ‘wander alert bracelets’.
Equally, it is difficult to see how there could be any risk of the kind alleged by the prosecution in respect of residents who left the facility in the company of another person or other people. Presumably if such a resident fell ill or was injured, necessary help or medical assistance would be summoned immediately. The issue of whether there was any real risk in the case of a resident who was both physically able and mentally competent may also be debatable.
The question of whether there was any relevant risk from the conduct of the applicant’s undertaking to the health and safety of residents (or more specifically whether the risk identified by the prosecution arose from the conduct of the applicant’s undertaking) is a question of fact. As Lord Hoffmann[20] said when considering s 3(1) of the Health and Safety at Work etc Act 1974 (UK):[21] ‘Whether the activity which has caused the risk amounts to part of the conduct by the employer of his undertaking must in each case be a question of fact’.[22] His Lordship went on to say: ‘The place where the activity takes place will in the normal case be very important; possibly decisive. But one cannot lay down rigid rules’.[23]
[20]With whom the other members of the House of Lords (Lord Mackay of Clashfern LC, Lord Goff of Chieveley, Lord Jauncey of Tullichettle and Lord Mustill) agreed.
[21]For present purposes, relevantly identical to s 23(1) of the OHS Act; see DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676, 716-17 [171].
[22]Octel [1996] 4 All ER 846, 852; [1996] 1 WLR 1543, 1548.
[23]Ibid.
The existence and extent of any risk of the kind pleaded by the prosecution (if it existed) was one that depended upon the individual circumstances of each resident, and in some cases the individual circumstances of each occasion when a particular resident left the facility. The risk alleged by the prosecution (again, if it existed) was different for each resident, and likely different on each occasion a resident left the facility. The only evidence tendered at trial concerned the risk associated with Mr Keating leaving the facility on the morning of Saturday 10 March 2018. No evidence was tendered as to the frequency with which residents left the facility on their own without using the sign-out book referred to by Ms Luckhurst in her evidence. No evidence was tendered of any risk of the kind alleged by the prosecution as having been identified, by the applicant or any other person, prior to Mr Keating leaving the facility on the day he was injured. The existence of any such risk and its extent in any particular circumstances was simply unknown on the evidence given at trial.
Having made an assessment of the totality of the evidence as we are required to,[24] we are left with a reasonable doubt as to whether the prosecution proved that there was the risk to health and safety alleged by it arising from the conduct of the applicant’s undertaking. In our view, there was a real paucity of evidence about the nature and extent of the risk for which the prosecution contended, such that we have real doubts both as to the actual existence of the risk alleged, and whether it arose from the applicant’s undertaking. In relation to the question of whether the risk alleged by the prosecution arose from the applicant’s undertaking, we think there is a real possibility that, in fact, to the contrary, the risk alleged arises by reason of the many external circumstances a resident might face whenever he or she leaves the facility; alternatively, it arises because a resident has chosen not to use the sign-out book, or otherwise inform staff at the facility of the fact that they are leaving, their destination and the expected duration of their departure.
[24]Dansie [2022] HCA 25, [16].
Even before a consideration of the evidence, real problems arise in attempting to define, without circularity, the particular activity in the conduct of the applicant’s undertaking said to give rise to the identified risk. If that activity is defined as permitting residents to leave the facility ‘without being appropriately monitored’, we think there is force in the argument that such a formulation is circular. The proposed measure to mitigate a risk is used to identify, by its absence, the activity that brings about the risk. In any event, putting aside any circularity, the risk identified is simply an incident of any person being at large, on their own, in a public space. It is difficult to see how such a risk in any sense arises from the conduct of the undertaking of an aged care facility in which residents (unless in a dementia unit or fitted with a wander alert bracelet) enjoy the same rights of freedom of movement and choice as any other adult in the community.
The trial judge in this case enjoyed no advantage over this Court. All of the evidence against the applicant was documentary and tendered in short compass. It follows that the doubt we experience is a doubt the trial judge should have experienced — he having no advantage over this Court which might assuage the reasonable doubt as to the applicant’s guilt which we have concluded is present on the whole of the evidence. Accordingly, proposed ground 1 must be upheld.
It follows from what we have said above that there should be a grant of leave to appeal, the appeal must be allowed, the judge’s verdict must be set aside and a verdict of acquittal must be entered. That said, in deference to the parties’ submissions and for completeness, we now turn to proposed ground 2.
Proposed ground 2: did the prosecution prove that the applicant failed to take a reasonably practicable measure that would have eliminated or reduced the risk?
Applicant’s contentions
The applicant contended that as an approved provider under the Aged Care Act 1997 (Cth) and the Aged Care Quality and Safety Commission Act 2018 (Cth), it operated in a highly regulated environment which provided for residents of aged care facilities to have rights and responsibilities under a charter[25] which included:
•to be treated with dignity;
•personal privacy;
•to live ‘in a safe, secure and homelike environment, and to move freely both within and outside the residential care service without undue restriction’;
•to be ‘treated and accepted as an individual, and to have his or her individual preferences taken into account and treated with respect’; and
•‘to accept personal responsibility for his or her own actions and choices, even though these may involve an element of risk, because the care recipient has the right to accept the risk and not to have the risk used as a ground for preventing or restricting his or her actions and choices’.
[25]The charter was the ‘Charter of care recipients’ rights and responsibilities – residential care’ set out in Schedule 1 of the User Rights Principles (made under s 96-1 of the Aged Care Act). Section 56-1(m) of the Aged Care Act required the applicant ‘not to act in a way which [was] inconsistent with any rights or responsibilities that [were] specified in the User Rights Principles’. Section 9 of the User Rights Principles provided that the rights and responsibilities set out in Schedule 1 of the User Rights Principles were those to which s 56-1(m) of the Aged Care Act applied.
The applicant submitted that it was the intention of the charter which provided these rights that life in an aged care facility should be ‘as homelike as possible’; and that the independence and privacy of residents ‘should be maximised, even where residents’ choices involved personal risk’.
The applicant submitted that being required (as opposed to invited) to sign themselves in and out of their own residence, and to disclose where they were going, with whom, and when they would return, was inconsistent with residents’ rights. In relation to Mr Keating, the applicant submitted that he chose not to tell staff that he was leaving the facility, or to use the sign-out book which was in place. It was submitted that, in doing so, he accepted personal responsibility for his own actions, even though they might involve an element of risk (as was his right).
The applicant submitted that even if it were to be concluded that requiring a resident to use a sign-out book was only a small interference with rights, it could only be justified if it were also proven to be effective. As the applicant put it, ‘on the evidence, its effectiveness as a measure of reducing risk was speculative’. It submitted that the lack of such evidence was ‘particularly stark’ given the regulatory context in which the applicant operated.
Respondent’s contentions
The respondent contended that there was ‘ample evidence’ upon which it was open to the judge to find, beyond reasonable doubt, that ‘the provision of a monitored “sign-out/sign-in” register recording the name of the resident, the time they left the facility, the expected time of their return, their destination, the actual time of the return, whether they were accompanied and their signature’, was reasonably practicable and that it would have eliminated or reduced the risk.
The respondent again made reference to the purpose of the OHS Act being to uphold the principles of health and safety as set out in s 4 of that Act.
The respondent contended that notwithstanding a lack of expert evidence or evidence of industry practice, there was sufficient evidence to prove that the identified measure was reasonably practicable and that it would have eliminated or reduced the risk. In support of that submission, the respondent relied upon the judge’s reasoning at Conviction Reasons [139] as follows:
I do take [counsel for the accused’s] point about the lack of expert evidence or evidence of industry practice. If the prosecution had adduced such evidence, that conceivably could have been of some assistance. However, I am not at all satisfied that it constitutes a fatal gap in the prosecution case. Much of what is contended here comes down to common sense and the practicalities of monitoring residents in case they get into difficulty. On the evidence adduced at trial there is more than sufficient evidence to identify the risk and the means by which it might be addressed.
Proposed ground 2: consideration
As we have already observed, para (e) of the particulars of the charge pleaded that the reasonably practicable measure which the applicant should have taken to ensure that residents of the facility were not exposed to the risk to their health and safety pleaded in para (d) was the provision of ‘a monitored “sign-out/sign-in” register recording the name of the resident, the time they left the facility, the expected time of return, the destination, the actual time of return, whether they were accompanied and their signature’. As we have also already noted, the prosecutor told the trial judge that Exhibit H was tendered to show that the procedure adopted by the applicant following Mr Keating’s fall demonstrated that this identified measure was reasonably practicable, not prohibitively expensive, and should have been taken prior to 10 March 2018.
The Crown case was that, notwithstanding there was a sign-out/sign-in register which residents of the facility could use if they chose to do so when leaving or coming back to the facility, the facility should have made a rule and/or requested all such residents to use the register whenever they left or came back to the facility. The prosecution contended at trial that asking and/or encouraging residents to use the sign-out/sign-in register would have eliminated or reduced the risk for which it contended. There are at least two difficulties with these contentions.
First, and having regard to the rights of residents set out in Schedule 1 of the User Rights Principles, the imposition of a monitored sign-out/sign-in register could not be a reasonably practicable response to the risk identified in para (d) of the particulars of the charge for every resident of the facility. Plainly, there would be residents for whom such a requirement (compulsion) would not be appropriate having regard to their physical and mental level of functioning. For those residents, any compulsion (rule) requiring them to provide the information necessary to complete the monitored sign-out/sign-in register posited by the prosecution would be an imposition that could not reasonably be justified.
The solution advanced by the prosecution of a sign-out/sign-in register to deal with any and all risks for all residents associated with injury or illness being suffered by them is, with respect, superficial. The least needy, and most able to care for themselves, are most likely to be justifiably offended by being asked for the information which the respondent contends should be provided by every resident leaving the facility. If any risk of the kind pleaded by the prosecution exists in respect of any particular resident or class of residents, then any measure designed to reduce or eliminate such risk needs to be much more nuanced and case specific than some one size fits all response, if it was to be both reasonable and practicable within the meaning of s 23(1).
Secondly, a monitored sign-out/sign-in register, without more, could not reduce any risk to health and safety. It could only be that if some additional step or steps were taken as a result of the provision of the ‘semi-compulsory’ sign-in/sign-out register, that any risks to health or safety might be reduced or eliminated. The extent of the step or steps to be taken following the failure of a resident to return to the facility at or shortly after the expected time of return were set out in exhibit H as merely involving the following:
6.In the event that the resident has not returned at the expected time, and the resident is not in the company of family/escort, the Registered Nurse should phone the Resident or their NOK to ascertain their wellbeing.
7.If contact cannot be made, then the situation should be immediately escalated to the Facility Manager for further action decisions.
No evidence was called at trial about what if any steps would be taken in the variety of circumstances that may arise when a resident does not return at the expected time of return. For example, no evidence was given about what (if any) searches might be undertaken by employees of the applicant if any particular resident was five minutes late, 15 minutes late, 30 minutes late or overdue by some longer period of time. No evidence was given about the capacity or otherwise of the applicant to perform searches at any particular time in any particular circumstances. And no evidence was given about whether or not the applicant could or should have contacted the police or any other person at any particular time after a resident was overdue in returning to the facility.
Specifically, no evidence was given from which one might infer beyond reasonable doubt that steps would be taken which would ensure that a resident who has suffered injury or fallen ill, away from the facility, would be located earlier by the taking of such a step or steps in any and what circumstances as a result of the provision of the ‘monitored sign-out/sign-in register’. While one might be prepared to infer that, in particular circumstances, in some individual cases, some additional step could be taken which might have reduced the risk pleaded, the paucity of evidence that any such step in any individual case would (as the section requires) have eliminated or reduced the relevant risk mandates a conclusion that the prosecution did not prove beyond reasonable doubt that the applicant failed to take a reasonably practicable measure that would have eliminated or reduced that risk.
For these reasons, we do not think the prosecution proved that the applicant failed to take a reasonably practicable measure which would have eliminated or reduced the risk referred to in para (d) of the particulars of the charge. The measure identified in para (e) was not reasonably practicable in that it had the capacity to interfere with the rights of those residents who were the least needy and most able to care for themselves. Moreover, in the absence of any evidence of what additional steps might be taken after a resident was found to have remained away from the facility beyond his or her expected return time, there must be real doubt as to whether the identified measure would have the consequence for which the prosecution contended. The doubt we have about these matters is a doubt the trial judge should have experienced. As we have already observed, his Honour enjoyed no advantage over this Court in the circumstances of this case.
It follows that, in addition to proposed ground 1, proposed ground 2 should be accepted.
Conclusion
We will grant the applicant leave to appeal, allow the appeal, set aside the conviction and, in its place, order that the applicant be acquitted.
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