Transfield Pty Ltd v MacCarron

[2004] WASCA 78

TRANSFIELD PTY LTD -v- MACCARRON [2004] WASCA 78

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 78
Case No:	SJA:1089/2003	Heard:	15 DECEMBER 2003
Coram:	HASLUCK J	Delivered:	28/04/04
No of pages:	24	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	TRANSFIELD PTY LTD CIARAN CHRISTOPHER MACCARRON
Catchwords:	Criminal law Occupational health and safety Failure to provide safe working environment Particulars concerning practicable measures Power to amend particulars Whether amendment to particulars appropriate Whether particulars proved Turns on own facts
Legislation:	Justices Act 1902 Occupational Safety and Health Act 1984, s 19
Case References:	Barca v The Queen (1975) 133 CLR 82 Campbell v The Queen [1981] WAR 286 Devries v Australian National Railways Commission (1993) 177 CLR 472 Go-Crete Pty Ltd v Innes [2002] WASCA 240 Henry Walker Contracting Pty Ltd v Farnworth [2000] WASCA 253 Kalgoorlie Regional Traffic Council v Fostinelli (1974) WAR 3 Meiklejohn v Central Norseman Gold Corporation Ltd (1996) 89 A Crim R 311 Parker v The Queen, unreported; SCt of WA; Library No 960740; 20 December 1996 Peacock v The King (1911) 13 CLR 619 Plomp v The Queen (1963) 110 CLR 234 Shepherd v The Queen (1990) 170 CLR 573 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : TRANSFIELD PTY LTD -v- MACCARRON [2004] WASCA 78 CORAM : HASLUCK J HEARD : 15 DECEMBER 2003 DELIVERED : 28 APRIL 2004 FILE NO/S : SJA 1089 of 2003 MATTER : Justices Act 1902 BETWEEN : TRANSFIELD PTY LTD

Appellant

AND

CIARAN CHRISTOPHER MACCARRON
Respondent

ON APPEAL FROM:

Jurisdiction : COURT OF PETTY SESSIONS

Coram : MS B A LANE SM

File Number : 23333/2002

Catchwords:

Criminal law - Occupational health and safety - Failure to provide safe working environment - Particulars concerning practicable measures - Power to amend particulars - Whether amendment to particulars appropriate - Whether particulars proved - Turns on own facts

(Page 2)

Legislation:

Justices Act 1902

Occupational Safety and Health Act 1984, s 19

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr M H Zilko SC
Respondent : Ms L E Christian

Solicitors:

Appellant : Phillips Fox
Respondent : State Crown Solicitor

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

Barca v The Queen (1975) 133 CLR 82
Campbell v The Queen [1981] WAR 286
Devries v Australian National Railways Commission (1993) 177 CLR 472
Go-Crete Pty Ltd v Innes [2002] WASCA 240
Henry Walker Contracting Pty Ltd v Farnworth [2000] WASCA 253
Kalgoorlie Regional Traffic Council v Fostinelli (1974) WAR 3
Meiklejohn v Central Norseman Gold Corporation Ltd (1996) 89 A Crim R 311
Parker v The Queen, unreported; SCt of WA; Library No 960740; 20 December 1996
Peacock v The King (1911) 13 CLR 619
Plomp v The Queen (1963) 110 CLR 234
Shepherd v The Queen (1990) 170 CLR 573




(Page 3)

Case(s) also cited:

Nil


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1 HASLUCK J: This is an appeal against a conviction recorded against the appellant, Transfield Pty Ltd ("Transfield"), pursuant to provisions of the Occupational Safety and Health Act 1984. The appeal raises issues as to whether the learned Magistrate erred in law in permitting the respondent to amend the relevant complaint after the evidence at the hearing had been given and as to whether the learned Magistrate erred in law in the interpretation placed upon certain provisions of the Act.

The complaint

2 It appears from the originating complaint that the respondent, Ciaran Christopher MacCarron, was a person duly authorised by the Worksafe Western Australian Commissioner to make the subject complaint. The terms of the complaint were that on 21 September 2000 at Acacia Prison site Wooroloo the appellant, being an employer, failed, so far as was practicable, to provide and maintain a working environment in which its employee was not exposed to hazards and by that failure cause the death of an employee contrary to s 19(1) and s 19(7) of the Act.

3 The statutory provisions specified in the complaint lie within Pt III of the Act which contains general provisions relating to occupational safety and health. Section 19(1) provides that an employer shall, so far as is practicable, provide and maintain a working environment in which his employees are not exposed to hazards. The provision goes on to refer to a number of specific duties to be performed by an employer such as the provision of plant and systems of work such that, so far as is practicable, his employees are not exposed to hazards and the provision of appropriate instruction. The provision is to be construed so that the particular duties do not limit the generality of the broad duty whereby employees are not to be exposed to hazards. The term "practicable" means reasonably practicable having regard to criteria specified in the definition of that term in s 3 of the Act including the state of knowledge about the severity of any potential injury or harm to health that may be involved, the degree of risk of it occurring, the means of removing or mitigating the risk, and the availability, suitability, and cost of the means of attending to such matters. I will return to these provisions in more detail later.

4 Section 19(6) provides that an employer who contravenes s 19(1) commits an offence and is liable to a fine of $100,000. By s 19(7), an employer who contravenes subs (1) and by that contravention causes the death of, or serious harm to, an employee commits an offence and is liable to a fine of $200,000. It emerges, then, that a distinction is drawn between an act of infringement that causes death or serious harm and

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other acts of infringement. If, as in the present case, the charge is advanced pursuant to s 19(7) it will be necessary for the prosecution to establish beyond reasonable doubt that the conduct complained of caused the death in question.

5 I understand that in the present case, prior to the matter being listed for hearing at the Court of Petty Sessions held at Perth the appellant was provided with particulars of the charge that were expressed in this way:

"PARTICULARS OF CHARGE

1. EMPLOYEE

Joseph Angelo Guagliardo.

2. HAZARD

Risk of death or injury from the use of a concrete cutting saw to cut a concrete pipe.

3. PRACTICABLE MEASURES

It was practicable for the Defendant to have:

(a) carried out a job safety analysis in relation to cutting the concrete pipe;

(b) provided wooden blocks, wedges and nails to allow the concrete pipe to be cut whilst chocked and braced;

(c) instructed Mr Guagliardo to chock and brace the concrete pipe prior to cutting it; and

(d) ensured that Mr Guagliardo chocked and braced the concrete pipe prior to cutting it.

Alternatively, it was practicable for the Defendant to have:

(e) had the concrete pipe cut to size off site.

4. DEATH

The Defendant's failure as alleged caused the death of Joseph Angelo Guagliardo."

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6 I understand that these particulars were faxed to the appellant on 9 May 2002. The matter came on for hearing at the Court of Petty Sessions on 3 June 2003 on which occasion evidence was received from various witnesses bearing upon the circumstances at the site on the date of the accident and the system of work. In addition, counsel for the respondent adduced evidence from experts including evidence from a civil engineer, Mr Peter Airey. The appellant called various witnesses including a mechanical engineer, Mr Martin Simms.

The prosecution case

7 The nature of the prosecution case was outlined by counsel for the respondent in her opening address. She said that Transfield was the main contractor for the Acacia Prison project. The evidence would show that for the most part Transfield engaged sub-contractors to carry out the various parts of the construction work. It engaged a company called Catalano & Kurth Pty Ltd run by Mr Cosimo Catalano to carry out stone work and some concrete work for the prison project. That firm in turn employed Mr Joseph Guagliardo, known as "Joe" to carry out the stone work at the site. He was an experienced stone mason who was accustomed to cutting and shaping stone blocks and masonry for construction and renovation of structures such as retaining walls.

8 Counsel for the respondent went on to say that on 21 September 2000, Mr Guagliardo was asked by Mr John Cremin, the Project Engineer employed by Transfield, to cut a concrete pipe and he was provided with a quick-cut saw to carry out that task, being a saw he had used on other occasions to cut limestone blocks. The concrete pipe that Mr Guagliardo was asked to cut was approximately 2.4 metres in length with a flange at one end. The pipe was reinforced by longitudinal bars down the length of the pipe as well as by spirally wound reinforcement. Mr Guagliardo was left to his own devices as to how to cut the pipe. Mr Guagliardo was later found dead a short distance from where the pipe was situated with an injury to his neck.

9 According to counsel for the respondent, the state of the concrete pipe suggested that two cuts had been made, one of each side of it, whilst it was lying on the ground. The prosecution case was that while the second cut was being made, the upper surface of the pipe compressed (that is, the gap created in the pipe by the cut closed) causing the saw blade to kick-back and strike Mr Guagliardo in the neck. The respondent's case was said to be a "rather simple one" in that Transfield

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failed to provide Mr Guagliardo with a safe system of work to cut the pipe. Counsel for the respondent then said this:

"The hazard of kick-back associated with the use of a quick-cut saw is a well-known one. In essence, the complaint alleges two alternative practicable methods by which the pipe could have been cut.

And turning to the particulars, your Worship, in particular 3, in essence, 3(a) to (d), it's alleged that blocks could have been used to support the pipe and wedges to brace it to ensure that compression would only occur on the base of the pipe and not on the top which would have eliminated the possibility of kick-back occurring because of the cut closing in and catching the saw blade. Alternatively, it is alleged in 3(e) that the pipe could have been cut to size off-site. Further, it is alleged that the defendant's failure to provide a safe system of work and to instruct the deceased to use that system of work and to ensure that he did caused his death."

The hearing

10 As I have indicated, the hearing commenced on 3 June 2003. A considerable number of witnesses were called including the respective expert witnesses I mentioned a moment ago both of whom had prepared written reports. On the final day of the hearing, as appears from the transcript at 131 in the appeal book at page 14, and after presentation of evidence on both sides had been completed, a question arose as to whether the formal complaint and related particulars accurately reflected the case being advanced by the prosecution. In the course of a discussion with the learned Magistrate counsel for the respondent asserted that, on the respondent's case, it was practicable for Transfield to do each one of the things specified in the particulars. This meant that if the respondent established that any one of them was practicable, the charge of failing to provide a safe working environment would have been made out. This was said in answer to an argument being advanced by defence counsel that because sub-par (e) of the particulars was presented as being in the alternative it must follow that particulars (a) to (d) should be regarded as standing or falling together so that it was necessary for the prosecution to establish that each of the various things was practicable.

11 The discussion included reference to s 46 of the Justices Act 1902 which provides that no objection shall be taken or allowed to any complaint for any alleged defect therein, in substance or in form or for

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any variance between it and the evidence in support thereof, and any such variance shall be amended by order of the justices at the hearing. Section 47 provides that if any such variance appears to the justices to be such that the defendant has been thereby deceived or misled, they may, and at the request of the defendant shall, upon such terms as they think fit, adjourn the hearing of the case to some future day.

12 In the end, counsel for the respondent decided to apply for an amendment whereby at the end of each of the sub-pars (a), (b) and (c) the semi-colon would be removed and replaced by the words "and/or" with a view to more adequately reflecting the case the prosecution sought to make out, namely, that if it be held that it was practicable for Transfield as the employer to have put in place any one of the matters described in sub-par (a) to (d) of the particulars then the prosecution case would be made out. This application was vigorously opposed by counsel for Transfield upon the basis that amendments are not normally allowed late in the case, after presentation of the evidence, and in circumstances in which the effect of the amendment would be to convert two central allegations or two sets of particulars into five allegations or sets of particulars. He submitted that if he had known, during the course of the trial, that there were in effect five different complaints being put against Transfield the defence case would have been run in a different way.

13 The learned Magistrate was not persuaded that Transfield would be prejudiced if the proposed amendment was made, notwithstanding that all the evidence had been called, and decided to allow the amendment. Having done so, she then advised the parties that she would reserve her decision. It does not appear from the transcript that in the course of these exchanges counsel for the appellant specifically applied for an adjournment with a view to calling evidence bearing upon the prejudice that might be suffered by Transfield if the amendments were allowed. It was against this background that some weeks later, on 31 July 2003, the learned Magistrate delivered lengthy reasons for decision as a consequence of which she held that the respondent had proved beyond reasonable doubt that causation of the death of the deceased was caused by a breach of s 19(1) of the Act. On 15 August 2003 the learned Magistrate fined the appellant $50,000 and ordered it to pay the respondent's costs of $15,125.

14 Transfield obtained leave to appeal against the decision of the learned Magistrate upon the four grounds of appeal reflected in the orders. I will turn to the relevant grounds of appeal shortly. However, before doing so, it will be useful to refer to the evidence given at the hearing and

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the findings of the learned Magistrate as they are reflected in her reasons for decision.

Reasons for decision

15 The learned Magistrate noted that Transfield was the main contractor in respect of the Acacia Prison site but that a range of sub-contractors were used to carry out specific works. There was evidence before the Court that Transfield had a safety management plan in respect of the Acacia Prison project which included in cl 11 provisions concerning hazard identification, assessment and control. Clause 11.2 in regard to risk assessment indicates that the Job Safety Analysis or JSA process will be used to identify and document the work process steps, the associated hazards and risks, and the control measures required to safely perform the work. The supervisor has the primary responsibility of initiating a JSA and implementing the subsequent hazard control methods. A JSA will be required for all non-generic tasks where procedures do not exist or where there are significant hazards associated with the work activity which require appropriate control measures or where the persons involved are not familiar with the tasks.

16 The learned Magistrate noted that there was no dispute that on 16 May 2000 the deceased completed the Transfield induction course. He was working for Catalano & Kurth Pty Ltd but was engaged by Mr Cremin who was the Transfield Supervisor, to cut the concrete pipe in question. Mr Catalano stated that he had seen the deceased use a saw, but never to cut anything other than to cut limestone and to shape up block work. Mr Cremin agreed that he asked the deceased to cut a concrete pipe for the site drainage in the car park and obtain the stihal saw which he gave to the deceased for that purpose. In cross-examination, Mr Cremin stated that he had been an engineer for approximately 14 years and had seen concrete pipes cut with a quick-saw on numerous sites before, but never on the Acacia site. He stated that the deceased seemed quite happy to do the job and did not say that he did not want to do it. The only questions that he asked were about the dimension to be cut.

17 Mr Cremin went on to state that the deceased did not ask him to move the pipe or to brace it otherwise he would have organised for this to be done. He stated that at no stage did he see any danger or any problems as he considered the deceased to be a competent worker. In his opinion it was not necessary to supervise the deceased as he was aware of his experience after watching him on site.

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18 The learned Magistrate noted that the deceased's body was found near the stairs leading down into the main prison area from the car park. Post-accident photographs showed the saw cuts to the pipe with a significant amount of blood on the pipe and the ground consistent with severe loss of blood from the deceased at some point in time. There was no dispute that the concrete pipe was a 287mm outside diameter reinforced concrete pipe. She reviewed the evidence given by a number of witnesses including the experts bearing upon the question of whether kick-back occurred while the saw was being used in such a way that the diamond-tipped steel blade struck the deceased in the throat causing the fatal injuries.

19 Having reviewed the evidence and the relevant statutory provisions, the learned Magistrate proceeded to her finding. I will not traverse those findings in their entirety. She questioned the credibility and reliability of Mr Cremin and was of the view that he was not qualified to assess the expertise of the deceased in relation to cutting a concrete pipe. She accepted the evidence of Mr Peter Kellaway, who had 22 years experience in cutting concrete pipes, that to be able to cut a concrete pipe requires hours of training both practical and theoretical. She accepted the evidence of Mr Jason Rolfe that concrete pipes were usually cut on site using a quick-cut saw but if he was not sure of the experience of the person who was carrying out the task then he would prepare a JSA.

20 The learned Magistrate was of the opinion that the evidence of the experts Mr Simms and Mr Airey only really differed in one respect, but essentially they both concluded that the accident occurred because the concrete pipe was not chocked and braced and that the pinching of the diamond blade occurred because the pipe had cracked and the blade had come into contact with the steel reinforcement causing instantaneous kick-back to occur.

21 It was against this background that the learned Magistrate found from all the evidence that the cause of the death was the kick-back which occurred to the saw blade when the pinching of the pipe occurred and the blade touched the reinforcement of the steel radial wire, causing instantaneous kick-back to occur. She then proceeded to address the matters brought into issue by the various propositions reflected in the particulars.

22 As to the issue raised in sub-par (a), the learned Magistrate held [at AB 93] that whether the preparation of a JSA would have prevented the death of the deceased is speculative. Much would depend on the

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experience of the person preparing the JSA and their understanding of what was required. In the opinion of the learned Magistrate the prosecution "has not proved beyond reasonable doubt that the preparation of a JSA would have prevented the death of the deceased".

23 I note in passing in regard to this matter that, at the hearing of the appeal, counsel for the respondent argued forcefully that a finding in these terms suggested that the learned Magistrate had misdirected herself. The question was not whether the preparation of a JSA would have prevented the death of the deceased. The crucial question was whether the employer had complied with its obligation under the statute to provide and maintain a working environment in which the employee was not exposed to a hazard so far as is practicable. I will return to this aspect of the matter later.

24 As to particular (b), the learned Magistrate was of the view that Mr Cremin did not know the correct procedure that had to be adopted when a concrete pipe was cut. She accepted the evidence of Mr Kellaway that it is necessary to chock and brace when the concrete pipe had a flange on the end and required lifting. She found that it was practicable for the appellant to have provided wooden blocks, wedges and nails to allow the concrete pipe to be cut whilst chocked and braced. As to sub-par (c), she found that it was practicable for the appellant to have instructed the deceased to chock and brace the concrete pipe prior to cutting it and further to ensure that the deceased did chock and brace the concrete pipe prior to cutting it.

25 The learned Magistrate went on to hold that in her opinion, by not ascertaining the true experience of the deceased and the correct procedure to carry out the task safely, the appellant could not provide a safe working environment and therefore did not take reasonably practicable steps to reduce the risk of injury or harm to health of the employee. Having regard to the evidence of Mr Dilizia, it was practicable for the defendant to have the pipe cut off site.

26 It emerges, then, that the prosecution failed to make out its case in respect of sub-par (a) concerning the JSA. This brings into focus the argument advanced by the appellant on appeal that the amendment to the particulars ought not to have been allowed in that if the four sub-paragraphs were to be read conjunctively the inability of the prosecution to make out its case in regard to one sub-paragraph would lead to acquittal. I must also mention in regard to this matter that at the hearing of the appeal the respondent obtained leave to rely on a notice of

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contention dated 18 March 2003 in which the respondent asserts that the decision at first instance should be affirmed on the ground that the evidence established that it was practicable for the defendant to have carried out a job safety analysis or JSA in relation to the cutting of the concrete pipe. Against this background, let me now turn to the various grounds of appeal. It will be convenient to deal with the grounds of appeal in reverse order. Thus, I will begin by dealing with the fourth ground of appeal which concerns the cause of death.

The fourth ground of appeal

27 The fourth ground of appeal is that in the alternative to grounds 2.1 - 2.3, the learned Magistrate erred in law in finding that the applicant's contravention of section 19(1) of the Act caused the death of the deceased.

28 Particulars

(i) there were no witnesses to the accident in which the deceased died;

(ii) any evidence as to what happened immediately prior to the deceased's death was entirely speculative and such evidence as there was on this issue depended upon assumptions being made by certain of the witnesses as to the manner in which the blade of the saw reacted immediately prior to its striking the deceased;

(iii) there was uncontradicted evidence before the court that the deceased had a bad headache and had been unwell before the accident to the extent that he intended to leave work early that day. This evidence, together with the uncontradicted evidence of Dr Karin Margolius that she was unable to say whether the deceased fainted, collapsed or lost consciousness whilst operating the saw should have led the learned Magistrate to conclude that she could not be satisfied beyond reasonable doubt that the applicant's conduct caused the death of the deceased.

29 In dealing with ground of appeal I must begin by returning to the relevant provisions of the Act. Section 19(1) provides that an employer shall, so far as is practicable, provide and maintain a working environment in which his employees are not exposed to hazards. The provision goes on to set out the obligations of employers in a more particular form. For example, an employer is obliged to provide such information and instruction as is necessary to enable employees to perform their work in such manner that they are not exposed to hazards. Where it is not practicable to avoid the presence of hazards at the workplace, an employer

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must provide his employees with adequate personal protective clothing and equipment.

30 By s 19(7), an employer who contravenes s 19(1) and by that contravention causes the death of or serious harm to an employee commits an offence and is liable to a fine of $200,000.

31 I noted also in earlier discussion that the learned Magistrate found after reviewing the evidence including the evidence of the two principal experts, Mr Airey for the respondent and Mr Simms for the appellant, that the cause of the death was the kick-back which occurred to the saw blade when the pinching of the pipe occurred and the blade touched the reinforcement of the steel radial wire, causing instantaneous kick-back to occur.

32 Counsel for the appellant submitted in support of this ground of appeal that there were no witnesses to the accident and so it was not known precisely what caused the deceased's death. In those circumstances the learned Magistrate was required to draw inferences as to the cause of the deceased's death in order to convict Transfield under s 19(7) of the Act. He said further that in a case which rested entirely on circumstantial evidence, a verdict of guilty could not be entered unless the circumstances were such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused person: Barca v The Queen (1975) 133 CLR 82 at 104 per Gibbs, Stephen and Mason JJ; Peacock v The King (1911) 13 CLR 619 at 639; Plomp v The Queen (1963) 110 CLR 234 at 252. Moreover, this was a case in which it was necessary for the learned Magistrate to reach a conclusion of fact as an indispensable immediate step in the reasoning process towards an inference of guilt, and that conclusion had to be established beyond reasonable doubt: Shepherd v The Queen (1990) 170 CLR 573 at 585.

33 Counsel for Transfield went on to submit that the conclusion of fact to be established beyond reasonable doubt in this case was that the deceased's ill-health at the time did not cause him to faint, collapse, lose consciousness or otherwise act in such a way as to result in him losing control of the saw and suffering the fatal injury. He referred to evidence from Mr Felice Minervini, who was called by the prosecution, that the deceased told him earlier on the day of the accident that he had a bad headache was going to leave work early because he was not feeling well. Reference was also made to the evidence of a forensic pathologist, Dr Karin Margolius, who carried out the autopsy on the deceased. She provided a report in which she stated that she could not say whether the

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deceased may have fainted, collapsed or lost consciousness immediately before his death. Counsel contended that in these circumstances the possibility of the deceased's ill-health being the cause of his death had to be excluded beyond reasonable doubt by the learned Magistrate before she could move to the point of finding that the deceased's death was caused by the process of kick-back. It was apparent from the reasons for decision that this possibility was not excluded in that the learned Magistrate referred only in passing to the evidence of Mr Minervini and did not refer at all to the evidence of Dr Margolius.

34 In dealing with the issue raised by the fourth ground of appeal I remind myself that by s 196 of the Justices Act the Court shall determine the appeal on the material before the Court below. By s 199 the Court may dismiss the appeal or set aside, quash or vary the decision or remit the case for hearing. The Court is not required to set aside or quash the decision if the facts or evidence in substance support the decision. If the Court considers that no substantial miscarriage has occurred, it may dismiss the appeal notwithstanding that a point raised in the appeal has been decided in favour of the appellant.

35 I remind myself also that causation in terms of s 19(7) of the Occupational Safety and Health Act is not a philosophical or scientific question, but a question to be determined by applying commonsense to the facts as they are found to be whilst appreciating that the purpose of the enquiry is to attribute legal responsibility in a criminal matter: Campbell v The Queen [1981] WAR 286 at 290; Go-Crete Pty Ltd v Innes [2002] WASCA 240 per Pullin J at par 15. In circumstantial cases, it is the duty of the trier of fact to consider all of the facts together at the conclusion of the case. In other words, the adjudicator is obliged to consider the weight which is to be given to the united force of all the circumstances put together: Parker v The Queen, unreported; SCt of WA; Library No 960740; 20 December 1996 at 89 and 90. I accept, of course, as indicated by the authorities relied upon by the appellant that, in a criminal case, the circumstances must exclude any reasonable hypothesis consistent with innocence.

36 However, it emerges from a consideration of these authorities that for an inference to be regarded as reasonable it must rest on something more than mere conjecture. In the present case there was a substantial measure of agreement between the two principal expert witnesses as to the hazard of kick-back. Further, the evidence as to the position of the deceased's body and the trail of blood to the body were circumstantial evidence which the learned Magistrate was entitled to draw upon in

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weighing up the effect of the expert evidence and arriving at her central conclusion as to causation. The decided cases indicate that for an inference concerning an innocent explanation to be drawn it must be reasonable in that it must rest on something more than mere conjecture. To my mind, remarks made by the deceased that he was feeling unwell give rise to conjecture only and it therefore cannot be said that the learned Magistrate erred in failing to specifically exclude a matter of conjecture of that kind.

37 Accordingly, I am not persuaded that the appeal should succeed on this ground.

38 I will now turn to the third ground of appeal.

The third ground of appeal

39 The third ground of appeal is that the learned Magistrate erred in law in placing undue weight on the evidence of Peter Grant Airey, an engineer called by the respondent, in finding the applicant guilty of a breach of sections 19(1) and 19(7) of the Act.

40 Particulars

(i) in her reasons for decision the learned Magistrate placed considerable weight on the opinion on (sic) Mr Airey that the cutting of the pipe on the ground was hazardous because of the effects of kickback forces for the operator of the saw and concluded therefrom that this caused the deceased's death.

(ii) the learned Magistrate referred to Mr Airey as being a witness of considerable expertise. However, Mr Airey conceded in his evidence that he had very little experience in determining the causes of kickback forces and had never been previously asked to express an opinion on the characteristics of a quickcut saw of the kind being used by the deceased;

(iii) no other witness had seen or heard of a person being injured or killed whilst using a quickcut saw to cut a concrete pipe lying on the ground;

(iv) in the circumstances, the learned Magistrate should have concluded that she could give little or no weight to the evidence of Mr Airey and if she had followed that course she could not have been satisfied to the requisite standard that the applicant was guilty of a breach of sections 19(1) and 19(7)of the Act.

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41 In dealing with the third ground of appeal I must begin by reminding myself that the learned Magistrate did appear to give considerable weight to the evidence of Mr Airey, being the engineer called by the respondent. She described him as being entirely credible and reliable and as a witness of considerable intelligence and expertise. She said that he was able to reach a conclusion accepted by the Court as carrying considerable weight. This suggests that she gave weight to the observation at par 3.1 of his written report where he said that cutting reinforced concrete pipes with a cutting blade is inherently hazardous because, unlike the homogeneous materials such as limestone blocks, the reinforcement within the concrete provides the additional resistance to cutting likely to create any one of three hazard conditions being kick-back, push-back or pull-in, depending upon the relationship of the cutting disk to the pipe being cut.

42 Counsel for Transfield submitted on the hearing of the appeal that it was apparent from Mr Airey's evidence that he was a civil engineer with a structural bias and did not have direct experience in a practical sense with the operation of a quick-cut saw or cutting reinforced concrete pipes on site. This was the first occasion on which he had been asked to comment on the cause and effect of kick-back forces resulting in the user's death.

43 Counsel went on to submit that the expert called by Transfield, Mr Simms, was a mechanical engineer who was familiar with the quick-cut saw and its properties, characteristics and operations. Mr Simms did not agree with Mr Airey that the job was more dangerous by the deceased cutting the pipe on the ground rather than cutting it on blocks. He thought that the accident in several respects was extremely unusual and unlikely to occur although this was not a matter specifically addressed by Mr Airey.

44 Put shortly, counsel for Transfield submitted that if the learned Magistrate had recognised that Mr Airey's qualifications and experience were limited as to his assessment of the consequences of using the saw to cut the pipe, she would have given less weight to his evidence and, in that event, might not have been satisfied to the requisite standard that the cutting of the pipe was hazardous.

45 In evaluating these submissions, it is important to keep steadily in mind that the learned Magistrate was of the view that Mr Simms and Mr Airey did not differ markedly in their analysis of what occurred. Essentially, they both concluded that the accident occurred because the concrete pipe was not chocked and braced and that the pinching of the diamond blade occurred because the pipe had cracked and the blade had

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come into contact with the steel reinforcement causing instantaneous kick-back to occur.

46 The general rule is that an appellate court is not to set aside a finding of fact of a trial Judge which is based on the credibility of a witness unless it can be shown that the trial Judge had failed to use or has palpably misused his advantage or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.

47 Mr Simms, Mr Dilizia and Mr Kellaway all recognised that kick-back could occur while using a quick-cut saw and that cutting a concrete pipe with a flange on one end whilst on the ground was hazardous. It was open to the learned Magistrate to take account of this evidence in evaluating the evidence given by Mr Airey. Accordingly, in my view, having regard to the degree of consensus reflected in the evidence of the various witnesses on both sides I am not satisfied that the learned Magistrate erred in giving weight to the evidence of Mr Airey in the course of determining the cause of death and the related question of whether Transfield in its role as employer had, so far as is practicable, provided and maintained a working environment in which its employees were not exposed to hazards.

48 I am not satisfied that the appeal should succeed on this ground.

The second ground of appeal

49 The second ground of appeal is that in finding that the particulars in sub-paragraphs (b) - (d) and sub-paragraph (e) of the complaint had been established, the learned Magistrate erred in law in failing to consider properly or at all the meaning and effect of "practicable" in section 19(1) of the Occupational Safety and Health Act 1984 as it applied to the circumstances of the case before her.

50 Particulars

(i) although the learned Magistrate recognised that the test of what the applicant should have done to provide and maintain a safe working environment for the deceased was an objective one, she failed to take account of or have due regard for the uncontradicted evidence of those witnesses who had worked on building or construction sites that they had never seen or heard of a person

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being injured or killed whilst using a quickcut saw to cut concrete pipes lying on the ground;

(ii) this was evidence which the learned Magistrate ought to have taken into account in determining whether a reasonable employer placed in the same position as the applicant, should have foreseen the risk of an accident happening to the deceased by using a quickcut saw to cut the pipe;

(iii) if the learned Magistrate had given due weight to the above evidence, she could not have been satisfied beyond reasonable doubt as to the applicant's breach of section 19(1) of the Act.

51 It will be convenient to deal with the issue raised by the respondent's notice of contention in conjunction with this ground of appeal, that is to say, the question raised initially by sub-par (a) of the particulars as to whether the evidence established that it was practicable for the employer to carry out a JSA with respect to cutting the concrete pipe.

52 The effect of s 19(1) is that an employer shall, so far as is practicable, provide and maintain a working environment in which his employees are not exposed to hazards. By s 3(1) the term "hazard" in relation to a person means anything that may result in an injury to the person or harm to the health of the person. The term "practicable" is defined as follows:

"'practicable' means reasonably practicable having regard, where the context permits, to -

(a) the severity of any potential injury or harm to health that may be involved, and the degree of risk of it occurring;

(b) the state of knowledge about -


(i) the injury or harm to health referred to in paragraph (a);

(ii) the risk of that injury or harm to health occurring; and

(iii) means of removing or mitigating the risk or mitigating the potential injury or harm to health;

and

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(c) the availability, suitability, and cost of the means referred to in paragraph (b)(iii)"

53 It is apparent from this definition that a critical element of the concept concerns the state of knowledge of the employer about certain specific constituents of the hazard and of the risk associated with it.

54 The prosecutor asserted in sub-par (a) of the particulars of charge that it was practicable for the defendant to have carried out a job safety analysis or JSA in relation to cutting the concrete pipe. It will be apparent from earlier discussion that the learned Magistrate purported to apply an objective test in determining what was practicable, that is to say, what a reasonable employer, placed in the same position or situation as Transfield, would have done, in the circumstances, so far as is practicable. I noted also that in dealing with the particular reflected in sub-par (a) she found that the prosecution had not proven beyond reasonable doubt that the preparation of a JSA would have prevented the death of the deceased.

55 As to this matter, I am persuaded by the submission put to me by counsel for the respondent at the hearing of the appeal that the learned Magistrate erred in regard to this finding in that a finding in these terms was misconceived. It is true that a finding in those terms had a bearing upon the element of causation which was a matter in issue before the learned Magistrate. However, a finding in these terms did not dispose of the question of whether it was "practicable" within the meaning of s 19(1) of the Act for Transfield to have carried out a job safety analysis.

56 There was evidence before the learned Magistrate as to the nature of a JSA in the circumstances in which one ought to be prepared including evidence as to Transfield's own policy as to when a JSA was required. I touched on the evidence in that regard in earlier discussion and noted, in particular, that the Transfield Safety Management Plan at par 11.2 concerning risk assessment specifically provided that a JSA would be required for all non-generic tasks where procedures did not exist or where there were significant hazards associated with the work activity or where the persons involved were not familiar with the task. The weight of the evidence, and the learned Magistrate's own findings, established that the cutting of the concrete pipe was not a generic task and that the deceased was an inexperienced worker in the task he was required to carry out, that is to say, the cutting of a reinforced concrete pipe.

57 The learned Magistrate was clearly required, having regard to the definition of the term "practicable", to look at evidence bearing upon the

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state of knowledge of Transfield as to the nature of the hazard and the injury that might result if the relevant risk was not removed or mitigated. However, in the event, a specific finding in that regard does not appear to have been made. When regard is had to the evidence, I consider that the learned Magistrate ought to have found that it was practicable for the appellant to have carried out a job safety analysis in relation to the cutting of the concrete pipe. My conclusion in that regard has a bearing upon the issue I will return to later as to whether there has been any substantial miscarriage of justice in the circumstances of the present case.

58 When I turn to the remaining particulars I note that counsel for Transfield at the hearing of the appeal argued that the learned Magistrate had confused what was physically possible with what was "practicable" as that term is defined in the Act. Counsel accepted that in a physical sense it was possible to provide blocks, chocks and nails as suggested in sub-pars (b) - (d) of the particulars however, this did not dispose of the crucial issue as to whether, viewed objectively, a reasonable employer engaged in the relevant field of activity could be said to have taken steps that were reasonably practicable to avert the risk of death or injury to the employee.

59 Counsel for Transfield submitted that if the learned Magistrate had taken into account and given due weight to the evidence of those witnesses who had never seen or heard of a person being injured or killed whilst using a saw to cut concrete pipes on the ground, then that evidence coupled with an absence of any other evidence on the state of knowledge of the reasonable employer in the position of Transfield should have led the learned Magistrate to conclude that she could not be satisfied beyond reasonable doubt that Transfield ought to have foreseen the risk of the deceased being injured or killed whilst cutting the pipe.

60 It was submitted that the learned Magistrate's reasons for decision did not expressly deal with the state of the reasonable employer's knowledge about such matters prior to the deceased's death. Counsel argued that the learned Magistrate substituted her finding as to the way in which the deceased died for the obligation imposed on her to be satisfied beyond reasonable doubt as to the state of the reasonable employer's knowledge regarding the likelihood of injury or death to the deceased.

61 I am not persuaded that the appeal should succeed on this ground. In order to establish a breach of s 19(1) of the Act it is necessary to establish that a reasonable employer, placed in the same position as the defendant, would have foreseen the risk of some accident happening, albeit not

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necessarily the precise accident that did occur. The risk of injury or death from kick-back from a concrete cutting saw appeared to be a matter of common knowledge attested to by various witnesses including the principal expert witnesses on both sides. The expert witnesses, and Mr Dilizia also, were aware that when a pipe with a flange is lying on the ground the top of the pipe is in compression giving rise to the risk of the pipe pinching as it was being cut. Accordingly, when the matter was viewed objectively, I consider that a finding was open on the evidence that the employer had the requisite state of knowledge and that this is implicit in the findings of the learned Magistrate.

62 Further, and in any event, if it be held, contrary to the view I have just expressed, that the findings of the learned Magistrate were not sufficiently explicit as to the criteria reflected in the definition of the term "practicable" and especially the state of knowledge element, then a question arises as to whether there has been a substantial miscarriage of justice in the circumstances of the present case. In that regard, I remind myself that by s 199(1)(b) of the Justices Act, upon the hearing of an appeal the Court may dismiss the 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.

63 It follows from earlier discussion that, in my view, the learned Magistrate erred in the manner in which she dealt with the contention reflected in sub-par (a) of the particulars. I consider that there was sufficient evidence to sustain a finding beyond reasonable doubt that it was practicable for Transfield to have carried out a job safety analysis in relation to cutting the concrete pipe. I consider that the learned Magistrate did not err in making findings to that effect in regard to the remaining particulars. Accordingly, even if it be held that the findings of the learned Magistrate were not sufficiently explicit as to whether it was practicable to provide a safe working environment, I am not satisfied in the circumstances of the present case that there has been a substantial miscarriage of justice in regard to the matters raised by this ground of appeal.

64 In short, I am not satisfied that the appeal should succeed on this ground.

The first ground of appeal

65 The first ground of appeal is that the learned Magistrate erred in law in permitting the respondent to amend the complaint after the evidence in the trial had been given and during the respondent's closing submissions.

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66 Particulars

(i) after all of the evidence in the trial had been given the learned Magistrate permitted the respondent, over the applicant's objection, to alter particulars (a) - (d) of the complaint by inserting after each of sub-paragraphs (a), (b) and (c) the words "and/or" so as to alter what was one composite particular with four parts into four separate particulars;

(ii) in her reasons for decision the learned Magistrate found that the particulars in sub-paragraph (a) had not been established to the requisite standard but that the particulars in sub-paragraphs (b) - (d) had been so established.

(iii) if the learned Magistrate had not permitted the respondent to amend the particulars in the way set out above, then upon her finding that the particulars in (a) had not been established to the requisite standard, she should have found that the composite particular comprised by sub-paragraphs (a) - (d) had not been established to the requisite standard.

67 Counsel for Transfield submitted that the respondent was bound by the particulars provided prior to the hearing at first instance and it was not open to the respondent to introduce evidence beyond the particulars without amendment. This meant that at the commencement of the hearing the practicable measures which it is alleged Transfield could have taken were essentially to be considered in two categories, being, first, the question of whether it was practicable for Transfield to have taken certain steps on the site in relation to cutting the concrete pipe such as carrying out a JSA and providing blocks, wedges and nails and proper instruction and, second, in the alternative, to have had the concrete pipe cut to size off site. The fact that the prosecution intended there to be two alternative practical methods of addressing any hazard was confirmed by the prosecutor's opening remarks in the trial. This meant that the first category, comprising particulars (a) - (d), should be regarded as a composite particular with four parts, each of which was dependent upon the other parts. In other words, the four propositions should be read conjunctively rather than disjunctively. This view of the matter was said to be confirmed by the use of the word "and" at the end of sub-par (c).

68 After both the prosecution and the defence had closed their cases, and during closing submissions by counsel for Transfield, the learned Magistrate permitted the contentious amendment to be made, over the appellant's objection, so as to alter what was one composite particular with four parts into four separate particulars. The learned Magistrate

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rejected the submission by counsel for the appellant that permitting the amendments would cause the appellant substantial prejudice in the conduct of its defence.

69 The fact of the prejudice was said to be borne out by the learned Magistrate's reasons for decision in the course of which, as I have noted in earlier discussion, the learned Magistrate held that sub-par (a) of the particulars concerning the job safety analysis had not been made out. This meant that if the amendment had not been made, and the propositions were read conjunctively to give rise to one composite category, the learned Magistrate would have been obliged to dismiss the complaint as to that particular.

70 I observed in earlier discussion that s 46 of the Justices Act contains a broad power to amend a complaint. The decided cases indicate that amendment to a complaint will be permissible and proper where it can be seen that the complaint is aimed at an identifiable offence but misses its mark as a result of careless or incompetent drafting: Kalgoorlie Regional Traffic Council v Fostinelli (1974) WAR 3 at 6; Meiklejohn v Central Norseman Gold Corporation Ltd (1996) 89 A Crim R 311 at 322. Further, it has been held that there is always power to amend the particulars of a complaint and the power ought to be exercised according to the circumstances of the particular case: Henry Walker Contracting Pty Ltd v Farnworth [2000] WASCA 253 at par 28.

71 In the present case, I am not persuaded that Transfield was exposed to any significant prejudice as a consequence of the amendment being made. In a case of this kind, and recognising that there is a broad power of amendment in the Justices Act, a defendant to a charge of the kind before the Court would usually be expected to come prepared to deal with eventualities of this kind. It was clear that Transfield had come prepared to address and deal with each of the particulars and in the course of the debate about the proposed amendment Transfield could not identify any particular way in which it was prejudiced by the amendment. Accordingly, I am not persuaded that the learned Magistrate erred in the exercise of her discretion in allowing the amendment.

72 Further, and in any event, in regard to this ground of appeal also, I am not satisfied that there has been a substantial miscarriage of justice. It follows from earlier discussion that, in my view, the evidence was sufficient to support a finding beyond reasonable doubt in regard to particular (a) that it was practicable for the defendant to have carried out a JSA in relating to cutting the concrete pipe. The consequence of that

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conclusion is that the amendment cannot be regarded as having had a decisive effect upon the outcome of the case.

73 Accordingly, I do not consider that the appeal should be allowed on this ground.

Summary

74 The appeal will be dismissed. I will hear from the parties as to whether any further orders or directions are required.