Western Power Corporation v Koenig
[2004] WASCA 119
•14 JUNE 2004
WESTERN POWER CORPORATION -v- KOENIG [2004] WASCA 119
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 119 | |
| Case No: | SJA:1080/2002 | 23 OCTOBER 2003 | |
| Coram: | STEYTLER J MCLURE J JOHNSON J | 14/06/04 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Appeal against conviction allowed, Conviction quashed, Acquittal ordered | ||
| B | |||
| PDF Version |
| Parties: | WESTERN POWER CORPORATION ALBRECHT ADOLF HEINRICH KOENIG |
Catchwords: | Energy and resources Electricity Incident on the Serpentine River in which a derrick attached to a barge struck an overhead conducting line Failure to report accident to the Director of Energy Safety Whether r 63(1) Electrical (Licensing) Regulations 1991 applied to this incident Whether r 63(1) Electrical (Licensing) Regulations 1991 imposed a reporting obligation on the appellant Parties to whom a report was to be made were not required to make a report to each other Words and phrases "Accident" Whether incident was an "accident" within the meaning of r 63 Electricity (Licensing) Regulations 1991 Incident came within definition of "accident" regardless of whether a nonelectrical cause triggered the sequence of events Words and phrases "Aware" Whether appellant was "aware" of the accident for the purposes of r 63(1) Electricity (Licensing) Regulations 1991 Person can still be "aware" of accident even if knowledge is second hand |
Legislation: | Electricity Act 1945, s 5(1) Electricity (Licensing) Regulations 1991, reg 3, reg 63 |
Case References: | Australian Casualty Co Ltd v Federico (1986) 160 CLR 513 Lowndes v The Queen (1999) 195 CLR 665 Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797 Brewer v Bayens (2002) 26 WAR 510 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- MCLURE J
JOHNSON J
- Appellant
AND
ALBRECHT ADOLF HEINRICH KOENIG
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : E M HEENAN J
Citation Number : [2003] WASCA 31
File Number : SJA 1080 of 2002
(Page 2)
Catchwords:
Energy and resources - Electricity - Incident on the Serpentine River in which a derrick attached to a barge struck an overhead conducting line - Failure to report accident to the Director of Energy Safety - Whether r 63(1) Electrical (Licensing) Regulations 1991 applied to this incident - Whether r 63(1) Electrical (Licensing) Regulations 1991 imposed a reporting obligation on the appellant - Parties to whom a report was to be made were not required to make a report to each other
Words and phrases - "Accident" - Whether incident was an "accident" within the meaning of r 63 Electricity (Licensing) Regulations 1991 - Incident came within definition of "accident" regardless of whether a nonelectrical cause triggered the sequence of events
Words and phrases - "Aware" - Whether appellant was "aware" of the accident for the purposes of r 63(1) Electricity (Licensing) Regulations 1991 - Person can still be "aware" of accident even if knowledge is second hand
Legislation:
Electricity Act 1945, s 5(1)
Electricity (Licensing) Regulations 1991, reg 3, reg 63
Result:
Appeal against conviction allowed
Conviction quashed
Acquittal ordered
Category: B
Representation:
Counsel:
Appellant : Mr R E Birmingham QC & Mr R N Barsden
Respondent : Mr R M Mitchell
Solicitors:
Appellant : Williams Ellison
Respondent : State Solicitor's Office
(Page 3)
Case(s) referred to in judgment(s):
Australian Casualty Co Ltd v Federico (1986) 160 CLR 513
Lowndes v The Queen (1999) 195 CLR 665
Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797
Case(s) also cited:
Brewer v Bayens (2002) 26 WAR 510
(Page 4)
1 STEYTLER & McLURE JJ: At about 9.30 am on 21 August 1999 a barge, travelling on the Serpentine River near Coodanup, struck an overhead conducting line which had been installed by the State Electricity Commission of Western Australia in 1977. The barge, which was used for constructing and maintaining wooden jetties, was equipped with a steel derrick which was held in place by metal stays or guy wires. The derrick was fully extended, reaching a height of 13 metres above the waterline. The conducting line which it struck was the lowest of three such lines suspended from wooden poles on either side of the river, being approximately 11 and a half metres above the water level at the time, the tide having been unusually high. When the derrick struck the line electricity flowed from the line, which was live, through the steel derrick and supporting steel stays to the deck of the barge and from there to the river itself. The line broke and the two ends of the broken line fell into the river.
2 There was only one person on the barge at the time, being the barge operator, Mr Derek Turner. Although a shower of sparks fell from the broken line, Mr Turner did not receive an electric shock or burn and was otherwise uninjured as a consequence of the incident.
3 The appellant was then, as it still is, a statutory corporation established pursuant to s 4 of the Electricity Corporation Act (1994) and a "supply authority" (a concept to which we shall return below) for the purposes of regulations made pursuant to s 32 of the Electricity Act 1945, including the Electricity (Licensing) Regulations 1991 ("the Licensing Regulations").
4 Two nearby residents, Mr and Mrs Allnutt, reported the incident to the appellant's Network Operations Control Centre ("NOCC"). The NOCC, in turn, arranged for the line to be repaired. However, no-one at or on behalf of the appellant reported the incident to the Director of Energy Safety ("the Director"), an office created by s 5 of the Energy Coordination Act 1994. Amongst the Director's functions (provided for by s 7 of that Act) are those vested in him by the Electricity Act 1945 and, hence, those identified in the Licensing Regulations, which have been made pursuant to s 32 of that Act. The Director's functions include, as his title suggests, various functions directed towards ensuring energy safety.
5 Regulation 63 of the Licensing Regulations provides as follows:
(Page 5)
- "Accidents to be reported
(1) Where an accident that has caused or is likely to cause danger to life or property has occurred any person who is aware of the accident or danger shall immediately report the fact to the Director and the relevant supply authority but if the person is an electrical worker in the course of his or her employment it is sufficient for the purpose of this regulation if the report is made to the employer of that person.
(2) Any report made to an employer under sub-regulation (1) shall be reported to the relevant supply authority and the Director.
(3) In sub-regulation (1) 'accident' - means an accident that results from a sudden discharge of electricity or that otherwise has, or may have, electrical origins."
6 The respondent, the Director, formed the opinion that the accident which took place on 21 August 1999 fell within the terms of reg 63 and that the appellant, as the relevant supply authority for the purposes of the regulation, was in breach of that regulation as a consequence of its failure to report the accident to him and thereby subject to the penalty provided for by reg 65, being, in the case of a corporation, a fine of up to $20,000. He consequently charged the respondent, by complaint under the Justices Act 1902, with an offence accordingly.
The proceedings before the Magistrate
7 The charge was heard by a Magistrate in the Mandurah Court of Petty Sessions. The appellant offered a number of defences to it. Two are relevant. They were that:
(a) the breaking of the conducting line had not been an "accident" as defined in reg 63(3) because it had not resulted from a sudden discharge of electricity and had not otherwise had, and nor might it have had, electrical origins; and
(b) in any event, the appellant had had no obligation to report the incident because it was not a "person who … [was] aware of the accident or danger" for the purposes of reg 63(1), the word "aware" connoting a direct knowledge
(Page 6)
- by personal observation or experience and the provision having application only to the first person who becomes "aware" of the incident.
8 The Magistrate rejected the first of the two propositions set out above and upheld the second. He was satisfied beyond reasonable doubt "that in all the circumstances an accident occurred and caused or was likely to cause danger to life and or property and the requirement to report did arise". However, he considered that the word "aware", where it appears in reg 63(1), "must equate to knowledge and not be interpreted in the general sense of awareness obtained by hearsay or other means" and that only "a person who has been personally involved in an incident constituting an accident within the meaning of the definition is legally obliged to report the accident to the relevant supply authority and the Director of Energy". He went on to say that the regulation did "not cast such an obligation on all persons or entities that subsequently become aware of the accident …".
The appeal to the primary Judge
9 The respondent appealed, by leave, to a single Judge of the Supreme Court. He contended, by his counsel, that the Magistrate was wrong to have construed reg 63 so as to confine the obligation to report an accident to the first person who directly became aware of it through observation or personal experience. The appellant, on the other hand, sought to uphold the Magistrate's construction and also, by a notice of contention, renewed its submission to the effect that the breaking of the conducting line had not been an accident as defined.
10 So far as this last contention is concerned, the appellant submitted, as it had before the Magistrate, that the accident had not resulted from a sudden discharge of electricity and that it had had no electrical origins. Its origins were said to be the "mechanical" collision between the barge's derrick and the overhead wire and the only discharge of electricity was said to have been that which resulted from the accident.
11 The primary Judge rejected that submission, agreeing with the following analysis which had been made by the Magistrate (page 8 of the Magistrate's reasons and par 26 of the primary Judge's reasons):
"The purpose of the legislation is to ensure that matters of this nature are reported to the relevant authorities for the general protection of the community. I am of the view that it was Parliament's intention that the regulation be interpreted in the
(Page 7)
- wide sense, not that the separate acts within the overall context of a set of circumstances be delineated in determining what constitutes an accident and or the consequence of an accident. The act of the derrick touching the wire, causing the sudden discharge of electricity of electrical origin, was of such nature when viewed objectively, as to be likely to cause danger to the life of Mr Turner and constituted the accident. The word accident, by definition, incorporates the act and or the consequence of the act. The circumstances of the matter before me are of such a nature as to constitute an accident within the meaning of the regulation as defined."
12 The primary Judge, having agreed with this analysis, went on to say (par 26) that no further exposition was needed. However, he added, by way of support for the Magistrate's conclusion, the following (ibid):
"For example, if as a result of a collision between two or more motor vehicles on a roadway adjacent to some electrical installation such as a switch yard, one of the vehicles were to career into the switch yard, and to strike electrical apparatus such as transformers, bringing down lines and resulting in the discharge of electricity with potential risk to the public, I consider that that would be an 'accident' within the meaning of the regulation, notwithstanding that the initiating cause had been the collision on the roadway. Obviously, any dangerous discharge of electricity should be reported to the Director of Energy Safety so that steps can be taken to ensure that such a special danger is addressed by persons trained and competent in dealing with electrical problems and that where and when necessary accompanying steps can be taken to switch off the continuing supply of electrical energy. These necessary precautions for public safety need to be taken regardless of whether or not the incident which triggers the 'accident' is not exclusively electrical."
13 Having rejected this ground advanced pursuant to the notice of contention, the primary Judge turned his attention to the ground the subject of the appeal.
14 His Honour accepted a submission, advanced on behalf of the respondent, to the effect that, as the need of the responsible authority to take rapid protective action in response to an accident was clearly the legislative purpose underlying the regulation, its application should not be
(Page 8)
- limited to any person or individual who had been personally involved in the accident, as distinct from some person who has come across it or observed it without being involved in the course of events which led to its occurrence (par 29). He went on to say (pars 30 and 31):
"There is plainly some force in the submissions by the … [appellant] that a court should recoil from an interpretation of the regulation which, if it involved a personal obligation to report by every person becoming aware of the accident, no matter how numerous these may be, might lead to exposure to liability for a criminal offence of those who would not be expected to be singled out for criticism or denunciation by the law. The response by the … [respondent] that the Director could be expected to exercise a wise discretion and avoid initiating prosecutions in other than suitable cases seems only to be a very limited answer to this problem and one which is inadequate to protect an innocent bystander who might be the last of many on the scene. Although not raised in argument it is possible that such a person, as last instanced, may have a defence to such a prosecution under s 24 of the Criminal Code if he or she had an honest and reasonable belief that the accident had been reported to a responsible authority, such as to the police, to the Supply Authority, or to an emergency service who, in turn, would be under an obligation to report the matter to the Director of Energy Safety.
But this is not a case about a latecomer upon the scene of an accident, already being addressed by the appropriate authorities, failing to take action to report the episode, whether under the belief that the emergency was already being addressed by responsible authorities or for any other reason. It is about a case where a responsible member of the public, Mrs Allnutt had immediately reported the accident to the respondent's NOCC within a few minutes, at the most, of its occurrence. The … [appellant] therefore had immediate notice of the accident and, in my view in addition to being under an obligation to take steps to address the situation and repair the damage, was also required by the regulation to report the incident to the Director of Energy Safety. It did not do so either immediately or at all and, consequently, this is not a case which involves the difficulties associated with numerous persons becoming aware of an accident and some of them failing to make a report, whether in
(Page 9)
- the belief that it was unnecessary or that a report had already been made or otherwise. While it can be acknowledged that more difficult questions of interpretation of the regulation would arise if questions were posed, against this background, of whether or not Mr Derek Turner or Mrs Allnutt were likewise under an obligation to report the accident to the Supply Authority and to the Director and whether, in Mrs Allnutt's case, a breach of the regulation is avoided by her prompt action in reporting the incident to the Supply Authority but not to the Director, they are questions that do not arise in this case and are best left for resolution on another occasion if that ever becomes necessary. It is sufficient in the present circumstances to conclude that the respondent was informed of this accident by the telephone report of Mrs Allnutt very quickly and that it was, from that moment on, aware of the accident or danger, and was under the obligation imposed by the regulation to report the fact immediately to the Director, but failed to do so."
15 Counsel for the appellant had also pointed to the Electricity (Supply Standards and System Safety) Regulations 2001 ("the Supply Regulations") which, by Div 4 of Pt IV (regs 34 to 39), had established a detailed regime, including an accident/incident reporting obligation, to deal with the operation of electricity network assets, including electricity transmission and distribution works. The submission had been advanced that Parliament could not be supposed to have intended to duplicate the reporting requirements for incidents that concern the same works or assets in different terms. The primary Judge said, in that respect (par 28):
"I cannot accept this last submission because an examination of regs 34 to 39 casts the reporting obligation upon the network operator and not upon members of the public or any electrical worker. It can readily be supposed that there may be accidents which become known or apparent to members of the public or electrical workers before they become known to the network operator. It is the immediate danger which might arise from such an accident that, in the interests of public safety, dictates that it be reported immediately by whomever becomes aware of it. Once it is reported to a Supply Authority and the Director it is by no means inconsistent or superfluous that there should be another current obligation to report by a network operator to ensure that proper investigation and evaluation of the overall operating system is undertaken so that not merely the immediate
(Page 10)
- danger created by the accident is addressed and removed, but also, that any necessary preventative measures be taken for the future."
16 Then, having allowed the appeal, the primary Judge went on, on 7 March 2003, to set aside the decision of the Magistrate to dismiss the complaint and, in lieu, ordered that the appellant be convicted of the offence. Having by then heard submissions in mitigation, he fined the appellant the sum of $12,500. In arriving at that figure, the primary Judge remarked that the failure to report the accident had had the consequence that the circumstances and layout of the power lines had not been investigated by the Director and that no independent safety appraisal had been undertaken. He went on to say:
"It is a tragic fact that in this particular instance in April 2001 there was another similar accident at this very point on the Serpentine River involving the same electrical crossing. On that occasion the mast of a yacht crewed by recreational sailors touched the overhead line and on this occasion one of the yachtsmen was killed. At the inquest held in July 2002 the state coroner at pages 12 and 13 of his reasons for decision made a … [series] of observations which stressed how unfortunate it was that this previous accident involving the subject of the appeal had not been reported to the Director of Energy Safety immediately after it had happened, or indeed before the second accident, and that had it been reported there might well have been investigations and a redesign of the crossing. His Worship the coroner was careful to refrain from intimating that there had been any breach of regulation 63 by the failure to report or that there was any causal connection between the failure to report and the subsequent tragedy.
I consider that I should exercise similar caution but recognise the episode as giving a dramatic instance of the possible consequences of a failure to report and highlighting in a tragic way the importance of compliance with the regulation. In the circumstances of this case, having regard to the fact that this was a very high voltage line, that this was a navigable river apparently in frequent use, that public lived in the vicinity and that accidents of this kind could unexpectedly occur, depending upon the influence of the tide, it seems to me that there was a very high obligation on Western Power to report this accident and that dealing with large corporate power suppliers the only
(Page 11)
- real remedy which the law or the public has to enforce the laws imposing obligations for public safety are significant fines."
The Appeal to this Court
17 The appellant appeals to this Court by leave of the primary Judge. There are three grounds of appeal (the first of them having been amended during the course of the hearing) as follows:
"(a) The Learned Judge erred in law in finding that the … [appellant] was required by Regulation 63(1) of the Electrical (Licensing) Regulations 1991 to report the occurrence of a barge striking an overhead powerline on 21 August 1999 ('the incident') to the Complainant. The Learned Judge should have found that, on its proper construction, the said Regulation did not apply to the … [appellant] and did not impose any reporting obligation in the circumstances.
(b) The Learned Judge erred in law in finding the incident was an 'accident' within the meaning of Regulation 63(1) of the Electricity (Licensing) Regulations 1991.
(c) In fining the … [appellant] $12,500, the Learned Judge acted on wrong principle and failed to give any or any sufficient weight to relevant considerations. In the premises, the sentence imposed was against sound discretionary judgment and in all the circumstances excessive.
PARTICULARS
- (i) the Learned Judge failed to give proper consideration to the antecedence [sic] of the … [appellant];
(ii) the Learned Judge failed to take proper account of the facts and circumstances giving rise to the complaint and the extent to which the failure to report was not intended;
(iii) having regard to the circumstances including the antecedence [sic] of the … [appellant], a spent conviction should have been ordered."
(Page 12)
18 In dealing with these grounds, it is convenient, first, to deal with two arguments advanced on behalf of the appellant under ground (a), the first being to the effect that reg 63 had no application at all to this incident and the second being to the effect that, if reg 63 did apply to the incident, it did not apply to the appellant even though it was "the relevant supply authority" for the purposes of that regulation. We propose then to deal with the question, raised by ground (b), of whether or not the incident was an "accident" as defined in reg 63 before returning to ground (a) to consider the question, also raised under that ground, whether, if there was an accident, and if reg 63 did apply to the appellant, the appellant was, in the circumstances, "aware" of the accident for the purposes of the regulation and consequently obliged to report the accident to the Director. We propose, finally, to deal with the appeal against sentence.
Did regulation 63 have any application to this incident?
19 The appellant contends (albeit no such contention appears to have been advanced before the primary Judge) that reg 63 had no application to this incident because it did not involve an "electrical installation", as that expression is defined in reg 3 of the Licensing Regulations. This contention (which was advanced at the hearing of the appeal and in written submissions which were filed, by leave, subsequent to the hearing) requires, in order to be understood, a consideration of reg 63 in conjunction with the definition of a "relevant supply authority" in reg 3 of the Licensing Regulations.
20 As will be apparent from the terms of reg 63 itself, an accident of the kind there referred to must be reported both "to the Director and the relevant supply authority". Regulation 3 defines "the relevant supply authority" as meaning:
"(a) in relation to an electrical installation of a consumer, the supply authority supplying electricity in the area within which the electrical installation is situated and to the distribution works of which the electrical installation is or is to be connected; or
(b) in relation to an electrical installation other than an electrical installation of a consumer, the Director."
21 Consequently, the appellant submits, the regulation is concerned only with a "relevant supply authority" in relation to an electrical installation of one of the two kinds referred to in the definition.
(Page 13)
22 An "electrical installation" is defined in reg 3 as including:
"… all wiring, wiring enclosures, switch gear, control and protective gear, appliances and any other components permanently connected to or associated with the wiring and that is on premises to which electricity is or is intended to be supplied through distribution works and where electricity is supplied from a private generating plant includes that plant".
23 The appellant's contention is that the conducting line involved in this incident was part of distribution works (defined in s 5(1) of the Electricity Act as meaning "works … utilized or capable of being or intended to be utilized for the purpose of distributing electricity to consumers…") and not part of any premises to which electricity is or is intended to be supplied through distribution works and therefore was not an "electrical installation" as defined. Because a "relevant supply authority" for the purposes of reg 63 is one in relation to an electrical installation, the appellant submitted, that regulation must have been intended not to apply to a situation such as that which occurred in this case, where the accident did not involve an electrical installation as defined but, instead, involved part of the distribution works.
24 This construction of reg 63 is said to be supported by the fact that, as previously mentioned, notification requirements in respect of incidents involving distribution works are imposed by the Supply Regulations (which came into effect on 4 January 2002). Regulation 35(1) of the Supply Regulations provides that a network operator (defined in regulation 3(1) to mean a supply authority and any other person lawfully operating transmission or distribution works, including the respondent) must notify the Director of -
"(a) any incident or event that is caused, or significantly contributed to, by electricity and that results in -
(i) serious injury; or
(ii) serious damage;
or
(b) any unplanned interruption to the supply of electricity from the network to -
(Page 14)
- (i) any consumer who has an average load of not less than 1 MW or whose annual electricity consumption usually exceeds, or can reasonably be expected to exceed, 8 760 MWh; or
(ii) at least 200 other consumers."
25 The appellant contends that the fact that this notification requirement has been imposed on network operators in respect of distribution works under the Supply Regulations fortifies a construction of the Licensing Regulations, in particular reg 63, to the effect that the operation of those regulations does not extend to accidents involving distribution works. Counsel for the appellant points, in this respect, to the fact that reg 3 of the Licensing Regulations defines an "electrical worker" as a person who carries out electrical work and defines "electrical work" as meaning:
"… work on electrical machines or instruments, on an electrical installation or on electrical appliances or equipment to which electricity is supplied or intended to be supplied at a nominal pressure exceeding 50 volts alternating current or 115 volts direct current whether or not the thing on which the work is performed is part of, or is connected to or to be connected to, any distribution works or private generating plant and, where work is performed on any appliance, whether or not electricity is supplied or may be supplied thereto through an electric plug socket or socket outlet."
26 Dealing with these last propositions first, we doubt, firstly, that much can be drawn from the Supply Regulations in the circumstances of this case. As we have said, they came into effect on 4 January 2002, some years after the promulgation of the Licensing Regulations (and after the incident the subject of this appeal). Consequently, at the time of its promulgation reg 63 could not have been construed upon the assumption that a requirement (which, significantly, does not entirely overlap that in reg 63) for the reporting of accidents involving distribution works was to be found elsewhere. Moreover, reg 63 has the purpose of protecting the public and it would, in our opinion, be surprising if the legislature had, in 1996, any intention of limiting that protection in the somewhat artificial manner now contended for on behalf of the appellant. If it be reasonably assumed that the legislature wished, by the promulgation of reg 63, to ensure that dangerous, or potentially dangerous, electrical accidents were promptly reported in order to enable those to whom the report was made to take remedial action, it would be surprising, to say the least, if no such
(Page 15)
- protection had been intended to be afforded in the case of accidents involving distribution works which, of course, can be equally dangerous to members of the public generally.
27 Also, it seems to us that the definition of "electrical work" in reg 3(1) of the Licensing Regulations encompasses work on distribution works. So much is apparent from the use of the words "whether or not the thing on which the work is performed is part of … any distribution works". There is no dispute as to the proposition that the definition of "distribution works" in s 5(1) of the Electricity Act, referred to above, encompasses conducting lines of the type struck by the barge in this case.
28 We should say, in this respect, that propositions were urged upon us to the effect that the only work on "part of … any distribution works" which is covered by the definition of "electrical work" is work on "electrical machines or instruments, on an electrical installation or on electrical appliances …"; that a conductor line is not an electrical installation or an electrical appliance as defined; and that electrical machines or instruments (neither of which is a defined term) are "subsets" of electrical installations or electrical appliances. These last two contentions seem to us to be untenable. We have earlier said that the definition of "electrical installation" is expressed to be inclusive and, as to the word "instrument", that word has a very wide meaning (the Shorter Oxford English Dictionary defines it as meaning, inter alia, "A thing with or through which something is done or effected; a means"), and we can see no reason why it should be categorised as a "subset" of electrical installations or electrical appliances for the purposes of the definition of "electrical work". Moreover, the fact that reg 19(2)(c) exempts from the licensing requirements certain kinds of electrical work to overhead lines seems to reinforce the proposition that work on distribution lines is electrical work.
29 Next, in considering the whole of the appellant's contentions under this heading it is instructive to have regard to the legislative history of the relevant provisions.
30 When reg 63 was first gazetted on 14 October 1991, it took the form which it currently takes save that the report was required to be made "to the [then State Electricity] Commission and the relevant Supply Authority" and subreg (3) did not then exist. Also, reg 3 did not then contain any definition of the expression "the relevant Supply Authority". Instead, a definition of "the relevant supply authority" appeared in reg 48, but that definition was limited in its effect to Pt V of the Licensing
(Page 16)
- Regulations, dealing with the regulation of electrical work, reg 63 having fallen within Pt VI, dealing with "miscellaneous" matters. Moreover, that definition provided only that the expression "the relevant supply authority" meant the State Electricity Commission, except where the installation concerned was supplied or to be supplied with electricity by a person other than the Commission, in which case it meant that other person. The definition was consequently not confined by reference to electrical installations.
31 Also, at that time the expression "supply authority" was defined in s 5(1) of the Electricity Act 1979 to mean:
"… any local authority, concessionaire, or other person which or who supplies electricity under the authority of this Act or any other Act, and a reference to a supply authority may, pursuant to subsection (2) of this section, include a reference to the Commission."
32 That definition, too, was consequently not confined by reference to electrical installations.
33 Then, in 1994, s 67 of the Energy Corporations (Transitional and Consequential Provisions) Act of that year amended the definition of "supply authority" in the Electricity Act by deleting the reference, in that definition, to the State Electricity Commission. Also, s 68 of that Act introduced a new provision, s 6(1) of the Electricity Act, which provided that the Electricity Corporation was a supply authority for certain purposes, including those of s 32 of the Act which, as we have said, empowered the making of the Licensing Regulations.
34 The current definition of the words "supply authority" was introduced into the Electricity Act in 1996 by s 14 of the Electricity Amendment Act 1996. That section also introduced a definition of the term "electrical installation" into s 5 of the Electricity Act.
35 In the same year the Electricity (Licensing) Amendment Regulations ("the Amendment Regulations") introduced a number of amendments to the Licensing Regulations. By reg 17 of the Amendment Regulations, reg 48 of the Licensing Regulations was repealed (being that which had defined the term "the relevant supply authority" for the purposes of Pt V) and, by reg 3 of the Amendment Regulations, the current definition of "the relevant supply authority" was introduced. Also, by reg 25(b) of the
(Page 17)
- Amendment Regulations, reg 63(3) of the Licensing Regulations was introduced.
36 It is apparent from this history that, when reg 63 was first promulgated, there was no basis for confining its operation to accidents involving electrical installations. Indeed, that would have been so even if the then definition of "relevant supply authority" in reg 48 had been applicable to reg 63. That remained the position until 1996. As was submitted by Mr Mitchell, who appeared on behalf of the respondent, if the purpose of the 1996 amendments to the Licensing Regulations was that of limiting the scope of reg 63 to electrical accidents involving electrical installations as defined, then the method adopted was extraordinarily subtle. Moreover, given that the purpose of the introduction of reg 63(3) was presumably that of expressly limiting the kinds of accidents in respect of which a reporting obligation might arise, it would be surprising if the legislature had intended to introduce a further, and far-reaching, limitation in so subtle a manner.
37 In these circumstances, and given that the definition of "electrical installation" in the Licensing Regulations is, as we have stressed, expressed to be inclusive (unlike the large majority of the definitions in reg 3, which make use of the word "means"), we are unable to accept that a limitation of the kind contended for was intended by the legislature.
38 It follows that we are satisfied that reg 63 was applicable to an incident of this kind, if it amounted to an accident for the purposes of that regulation.
Did reg 63 apply to the appellant?
39 That brings us to the appellant's contention that reg 63 does not impose any reporting obligation on it. Implicit in that contention is that it is not comprehended within the wide expression "any person".
40 As we understood the submissions advanced on behalf of the appellant in this respect, they rest upon the proposition that the legislature should not be taken to have intended that the persons to whom a report must be made should also be required to report an accident to each other. Counsel for the appellant submitted that reg 63 creates two categories of people, being persons with an obligation to report (any person who is aware of the accident or danger caused thereby) and persons to whom a report must be made (the Director and the relevant supply authority). He contended that the legislature could hardly have intended the relevant supply authority to report an accident to itself and to the Director or the
(Page 18)
- Director to report an accident to himself and to the relevant supply authority.
41 Of course, we recognise that reg 63 does create two categories of people and also that a "relevant supply authority" would not have to report a reportable accident to itself. However, these factors do not determine the question. The real issue is that of whether the persons to whom a report must be made should be required to report to each other.
42 While it is undoubtedly arguable, given the width of the words "any person", the different functions of those to whom the report must be made and the protective nature of the regulation, that the regulation should be read as imposing the same obligation upon the relevant supply authority as is imposed upon any other person, it is more difficult to accept that the legislation intended to impose upon the Director, as the holder of a statutory office, an obligation to report an accident of the kind dealt with to the relevant supply authority, least of all in circumstances in which the failure to do so is an offence attracting a significant financial penalty. While it must be accepted that the likelihood of the Director being in a situation in which he or she might be required by the regulation to report an accident of the kind dealt with to the relevant supply authority (if that was the effect of reg 63) is remote, we very much doubt that the legislature could have had that intention. Indeed, the very fact of the remoteness of that eventuality seems to us to lend support to a construction of that section which would deny its application to the Director. It seems to us that if no reporting obligation is imposed by reg 63 on the Director, as we consider to be the case, then it follows that none was intended to be imposed upon the relevant supply authority and that neither of the parties to whom a report was to be made was required to make any report to the other.
43 It consequently seems to us that this contention has been made good and that the appeal should be allowed upon this basis.
Was there an accident?
44 While it is unnecessary to consider the remaining arguments advanced upon the appellant's behalf, we consider it preferable that we should do so. The appellant's contention that this was not a reportable "accident" for the purposes of reg 63(1) rests upon the ground that the definition of "accident" in reg 63(3) limits the ordinary meaning of that word by requiring that the accident "results from a sudden discharge of electricity or … has, or may have, electrical origins" coupled with the
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- submission that this accident was entirely mechanical in origin and that any sudden discharge of electricity resulted from the accident and was not the cause of it.
45 In our opinion, the relevant accident in this case was the barge becoming electrically "live" as a result of the sudden discharge of electricity into it by the conductor line. The fact that that discharge was caused by the "mechanical" process of the derrick striking the line seems to us to be irrelevant. It does not alter the fact that the sudden discharge of electricity caused an accident when the barge became "live". That kind of accident could, self-evidently, cause danger to life or property as, indeed, occurred, some years later, when the yachtsman referred to by the primary Judge in the course of his sentencing remarks was accidentally killed in similar circumstances. It seems to us that, if regard is had to the ordinary meaning of the words used, and to the protective purpose to which we have referred above (as to which see Australian Casualty Co Ltd v Federico (1986) 160 CLR 513 at 527), the definition is intended to cover an incident involving any unexpected and unintended event resulting from a sudden discharge of electricity, or having electrical origins, regardless of whether some "non-electrical" cause triggered the sequence of events.
46 It follows, of course, that in our opinion there was, in this case, an accident of the kind defined.
Was the appellant "aware" of the accident for the purposes of reg 63(1)?
47 That brings us to the last of the contentions advanced on behalf of the appellant, so far as the merits are concerned, being that to the effect that the appellant should not be taken to have been "aware" of the accident for the purposes of reg 63. Counsel for the appellant submitted, in this respect, that, if, for the purposes of the regulation, the awareness of the accident could derive from second-hand information, this would result in every person who became aware of a reportable accident, but who failed to report it, being liable to punishment howsoever that person became aware of it. He submitted that Parliament could hardly have intended that consequence and that the better construction is that the awareness must come from first-hand knowledge. Moreover, he submitted, the words "aware of the accident or danger" should be read as "aware of the accident and danger" in order to give the regulation a sensible operation.
48 We are unable to accept either contention.
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49 As to the first of them, there are, in our opinion, unsatisfactory elements to the drafting of reg 63. It may be that that regulation should be read down so as to require any accident to be reported only once to each of the relevant supply authority and the Director. Indeed, it is difficult to imagine that the legislature's intention could have been otherwise. It may also be, as the primary Judge said, that a person would not be guilty of an offence if that person honestly and reasonably believed that a report had already been made. However, there is no basis for any reading of the regulation which would exclude its operation in respect of knowledge which was not "first hand". There may be many instances in which a person (perhaps the only person) who has first-hand knowledge of a dangerous or potentially dangerous accident does not, for one reason or another, report it. There is no reason to absolve the second person, who has no reason to believe that the first has reported, or will report, the accident, from responsibility for doing so merely because his or her knowledge is "second hand". Even if the appellant's knowledge in this case is correctly described as "second hand", it had no reason to believe that any report had been made to the Director. Indeed, it would have been surprising if any of the persons who had first seen the accident, Mr and Mrs Allnutt and the barge operator, had even been aware of the obligation to make a report to the Director. The appellant, on the other hand, given its position as a relevant supply authority, could and should be expected to have been aware of that requirement.
50 As to the second contention, there is, in our opinion, no basis for departing from the ordinary disjunctive meaning of the word "or" (as to which see Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797 at [13], [14] and [29]) where it appears in the phrase "aware of the accident or danger". Given the protective purpose of the regulation, it seems to us to be plain enough that the legislature intended that any person who was aware of either the accident or of danger to life or property should be required to report that fact.
The appeal against sentence
51 That leaves only the appeal against sentence. While it is, once again, strictly unnecessary to consider it, we shall express our views in respect to it.
52 The only contentions advanced by the appellant in this respect were, first, that the fine of $12,500 was manifestly excessive given the antecedents of the appellant and the fact that the failure immediately to report the incident was "unintended" and, second, that the primary Judge
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- had erred in taking into account the fact that a similar incident had later occurred, when it was not, in truth, similar and when there was no evidence that, if the earlier incident had been reported to the Director, the second incident would have been avoided.
53 It is not in doubt that the primary Judge took into account the antecedents of the appellant. He referred expressly to them in the course of his sentencing remarks. He said that such previous convictions as the appellant had for breaches of regulations made under the Electricity Act were not analogous and that he should not approach the question of the imposition of penalty "on the basis that either or both of those convictions [there were two of them] represent circumstances of aggravation". Also, there is nothing to suggest that his Honour considered that there was any deliberate breach of the regulations, it having been made abundantly clear to him in the course of submissions advanced on behalf of the appellant that the breach had not been deliberate. His Honour was told, immediately prior to sentencing the appellant, that the offence had been "an oversight". He was also told that remedial action had been undertaken after the yachting fatality. No other mitigatory factor of any substance was advanced.
54 As to the yachting incident, the primary Judge said (as will be apparent from the extract quoted above) that he "should exercise similar caution" to that which had been exercised by the Coroner who had, as his Honour put it, been "careful to refrain from intimating that … there was any causal connection between the failure to report and the subsequent tragedy". While his Honour did go on to say, in the quoted extract, that he recognised the later episode (which was relevantly similar to the earlier episode in the sense that, in each case, part of a vessel struck an overhead conductor line at the same place) "as giving a dramatic instance of the possible consequences of a failure to report and highlighting in a tragic way the importance of compliance with the regulation", those remarks cannot be made the subject of any valid criticism.
55 As has already been mentioned, his Honour concluded his sentencing remarks by saying that, when dealing with large corporate power suppliers, the only real remedy which the law or the public had to enforce the laws imposing obligations for public safety was a significant fine. In our opinion, if the appellant had breached reg 63, those comments would be apposite and the penalty imposed within the range of a reasonable discretion (as to which see Lowndes v The Queen (1999) 195 CLR 665 at 671 - 672).
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56 No error has consequently been shown.
Conclusion
57 It follows, from these conclusions, that we would allow the appeal against conviction, quash the conviction and sentence imposed by the primary Judge and restore the Magistrate's verdict of acquittal, albeit for somewhat different reasons. The appeal against sentence necessarily falls away.
58 JOHNSON J: I have had the advantage of reading the judgment of Steytler and McLure JJ. I agree with it. There is nothing I wish to add.
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