Western Power Corporation v Shepherd
[2004] WASCA 233
•15 OCTOBER 2004
WESTERN POWER CORPORATION -v- SHEPHERD [2004] WASCA 233
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 233 | |
| Case No: | SJA:1141/2003 | 5 AUGUST 2004 | |
| Coram: | BARKER J | 15/10/04 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | WESTERN POWER CORPORATION TANYA GAI SHEPHERD |
Catchwords: | Appeal against conviction under s 19(7) of Occupational Safety and Health Act 1984 (WA) Meaning of "practicable" and "foreseeability" Whether conduct constituted wilful disobedience Turns on own facts |
Legislation: | Occupational Health and Safety Act 1985 (Vic), s 4, s 21 Occupational Safety and Health Act 1984 (WA), s 3, s 19(1), s 19(7) |
Case References: | Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 Hamersley Iron Pty Ltd v Robertson, unreported; SCt of WA; Library No 980573; 2 October 1998 Holmes v R E Spence & Co Pty Ltd (1992) 5 VIR 119 Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100 MacCarron v Coles Supermarkets Australia Pty Ltd [2001] WASCA 61; (2001) 23 WAR 355 R v Australian Char Pty Ltd [1999] 3 VR 834 Tenix Defence Pty Ltd v MacCarron [2003] WASCA 165 Barcock v Brighton Corporation [1949] 1 KB 339 Cullen v State Rail Authority (NSW) (1989) 31 IR 207 Ertech Pty Ltd v Reid, unreported; SCt of WA; Library No 9174; 6 December 1991 Fremantle Steam Laundry Pty Ltd v Shepherd [2000] WASCA 17 Green v Mabey t/as H Mabey & Co, unreported; SCt of WA; Library No 940711; 7 December 1994 Leighton Contractors Pty Ltd v Ridge, unreported; SCt of WA; Library No 980650; 23 November 1998 McLean v Tedman (1984) 155 CLR 306 Morrison v Competitive Foods Ltd t/as Hungry Jacks, unreported; SCt of WA; Library No 9118; 25 October 1991 Morrison v Hulme Wool Scouring Co Pty Ltd, unreported; SCt of WA; Library No 930457; 6 August 1993 Morrison v Winton, unreported; SCt of WA; Library No 960698; 12 December 1996 Schultz v Tamworth City Council (1995) 58 IR 221 Silent Vector Pty Ltd v Shepherd [2003] WASCA 315 Sydney County Council v Coulson (1987) 21 IR 477 Troon Holidays Pty Ltd t/as Kewdale Engineering and Construction v MacCarron, unreported; SCt of WA; Library No 980572; 5 October 1998 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant (Defendant)
AND
TANYA GAI SHEPHERD
Respondent (Complainant)
ON APPEAL FROM:
Jurisdiction : COURT OF PETTY SESSIONS
Coram : MR MALONE SM
File Number : KA 1121 of 2003
Catchwords:
Appeal against conviction under s 19(7) of Occupational Safety and Health Act 1984 (WA) - Meaning of "practicable" and "foreseeability" - Whether conduct constituted wilful disobedience - Turns on own facts
(Page 2)
Legislation:
Occupational Health and Safety Act 1985 (Vic), s 4, s 21
Occupational Safety and Health Act 1984 (WA), s 3, s 19(1), s 19(7)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant (Defendant) : Mr W S Martin QC
Respondent (Complainant) : Ms J C Pritchard
Solicitors:
Appellant (Defendant) : Williams Ellison
Respondent (Complainant) : State Solicitor
Case(s) referred to in judgment(s):
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249
Hamersley Iron Pty Ltd v Robertson, unreported; SCt of WA; Library No 980573; 2 October 1998
Holmes v R E Spence & Co Pty Ltd (1992) 5 VIR 119
Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100
MacCarron v Coles Supermarkets Australia Pty Ltd [2001] WASCA 61; (2001) 23 WAR 355
R v Australian Char Pty Ltd [1999] 3 VR 834
Tenix Defence Pty Ltd v MacCarron [2003] WASCA 165
Case(s) also cited:
Barcock v Brighton Corporation [1949] 1 KB 339
(Page 3)
Cullen v State Rail Authority (NSW) (1989) 31 IR 207
Ertech Pty Ltd v Reid, unreported; SCt of WA; Library No 9174; 6 December 1991
Fremantle Steam Laundry Pty Ltd v Shepherd [2000] WASCA 17
Green v Mabey t/as H Mabey & Co, unreported; SCt of WA; Library No 940711; 7 December 1994
Leighton Contractors Pty Ltd v Ridge, unreported; SCt of WA; Library No 980650; 23 November 1998
McLean v Tedman (1984) 155 CLR 306
Morrison v Competitive Foods Ltd t/as Hungry Jacks, unreported; SCt of WA; Library No 9118; 25 October 1991
Morrison v Hulme Wool Scouring Co Pty Ltd, unreported; SCt of WA; Library No 930457; 6 August 1993
Morrison v Winton, unreported; SCt of WA; Library No 960698; 12 December 1996
Schultz v Tamworth City Council (1995) 58 IR 221
Silent Vector Pty Ltd v Shepherd [2003] WASCA 315
Sydney County Council v Coulson (1987) 21 IR 477
Troon Holidays Pty Ltd t/as Kewdale Engineering and Construction v MacCarron, unreported; SCt of WA; Library No 980572; 5 October 1998
(Page 4)
- BARKER J:
Introduction
1 The appellant, Western Power Corporation, appeals against its conviction by a Magistrate in the Court of Petty Sessions at Perth of an offence under s 19(7) of the Occupational Safety and Health Act 1984 (WA). The conviction followed the Magistrate's findings that Western Power Corporation contravened s 19(1) of the Act by failing to maintain a safe working environment and by that contravention caused the death of its employee, Daren Cheng Lim Tan.
Background
2 On 19 January 2000, Mr Tan - who was employed by Western Power Corporation as a graduate engineer - died from injuries sustained when he was electrocuted at Western Power Corporation's electricity substation at Ladyloch, near Coolgardie, Western Australia.
3 When he suffered electrocution, Mr Tan was in the company of Mr Ronald James Pike, an experienced linesman, who was also employed by Western Power. Mr Tan had accompanied Mr Pike from Kalgoorlie by motor vehicle earlier that day for the purpose of gaining familiarity with the nature and location of Western Power Corporation's facilities in the Kalgoorlie goldfield's area. Apart from assisting Mr Tan gain such orientation on the day in question, Mr Pike also carried out some of his regular duties at Western Power's facilities in this area.
4 At about 12.15 pm, Mr Pike and Mr Tan arrived at Western Power's Ladyloch facility, near Coolgardie. Mr Pike planned to read a meter at the facility. The Ladyloch electricity substation was located within a pumping station compound operated by the Water Corporation. Both the Water Corporation's compound and the substation were fenced and only accessible through locked gates. Only Western Power personnel with an appropriate key could gain access to the Water Corporation's compound, and only Western Power Corporation personnel with a particular key, known as a NK6 key, could gain access to the Ladyloch electricity substation. Under Western Power's work procedures, only authorised Western Power personnel were permitted to enter the electricity substation.
5 On the day in question Mr Pike held an NK6 key, but was not authorised to enter the substation. Mr Tan neither held such a key nor was authorised to enter the substation.
(Page 5)
6 In the event, Mr Pike, accompanied by Mr Tan, unlocked the gate to the Ladyloch substation with his NK6 key and entered the substation. Not long afterwards Mr Tan was electrocuted when he came into contact with an energised, or "live" transformer in the substation, and later died of the injuries he then suffered.
Hearing before the Magistrate
7 Why Mr Pike and Mr Tan actually entered the electricity substation enclosure and how it came about that Mr Tan was electrocuted, were issues explored on the hearing of the respondent's complaint before the Magistrate, that the appellant had contravened the duty imposed on it by s 19(1)(a) of the Act and that such contravention had caused the death of Mr Tan.
8 Section 19(1)(a) of the Act imposes the following duty on an employer:
"(1) An employer shall, so far as is practicable, provide and maintain a working environment in which his employees are not exposed to hazards and in particular, but without limiting the generality of the foregoing, an employer shall ¾
(a) provide and maintain workplaces, plant, and systems of work such that, so far as is practicable, his employees are not exposed to hazards;"
10 After hearing the evidence relating to the complaint, the Magistrate made a number of findings. Relevantly, the Magistrate found that Western Power personnel requiring to do work within the substation had to obtain a permit for such work from the appropriate officer within Western Power, and that the conditions of a permit, if granted, would require the two transformers within the substation to be de-energised before a person entered the substation. He also found that it was possible to de-energise both transformers without a person having to enter the substation.
(Page 6)
11 Additionally, the Magistrate found that, while it was necessary for Mr Pike to enter the Water Corporation's compound to read the electricity meter, it was not necessary for him to enter the electricity substation to read the meter. He expressly found that it was no part of Mr Tan's duties on the day in question to enter the electricity substation. The Magistrate found that both men, in the event, entered the substation without authorisation.
12 The Magistrate further found that the reason the men entered the substation was to remove a sapling growing near one of the transformers. He accepted that undergrowth within a substation can be a problem from Western Power's point of view and does need to be cleared from time to time. However, he also accepted that on this occasion the sapling did not present an immediate problem. He found it was no part of Mr Pike or Mr Tan's work to clear undergrowth in a substation, even though they decided to do so on this occasion. He held that their decision to do so was based on their belief that, if they did not do so, it would be some time before another Western Power employee charged with duties involving the removal of undergrowth would attend at Ladyloch to clear the undergrowth. Consequently, the Magistrate accepted that Mr Pike and Mr Tan reasoned that, if they removed the sapling, their actions would save someone else having to come out later to deal with it.
13 In particular, the Magistrate found that, after first reading the meter, Mr Pike and Mr Tan talked about the compound layout and vegetation growth within it. Mr Pike noticed a tree or sapling growing next to what he understood was a de-energised transformer. Mr Pike had a key in his possession that could unlock the lock on the gate to the substation.
14 The Magistrate found Mr Pike undid the lock and entered the substation, proceeding under the conductors on the de-energised transformer to the sapling, and that Mr Tan followed Mr Pike. He found Mr Pike and Mr Tan physically broke as much of the sapling as they could, and that Mr Pike then proceeded to leave the substation by the same route as he entered, stopping at the corner of the de-energised transformer.
15 The Magistrate found that, at this point, Mr Tan must have received an electric shock as Mr Pike's attention was then drawn to him. Mr Tan fell to the ground inside the substation, from where he was later dragged by Mr Pike.
(Page 7)
16 The evidence before the Magistrate showed that each transformer was 1.4 metres above ground level and that, if they had been placed higher, as they often are under contemporary practice, and as they were after the incident involving Mr Tan, a person walking within the substation would be unlikely to come into contact with them.
17 The Magistrate found that neither Mr Pike nor Mr Tan contacted anyone in Western Power about whether they should enter the substation prior to doing so. He also found that Mr Pike was aware that it was necessary to obtain a permit to enter the substation. The Magistrate accepted that it was contrary to all instructions given to Mr Pike, and the training he had received, to enter the substation enclosure. He noted that Mr Pike could not explain why he did so and had stated he had never done so before.
The Magistrate's ruling
18 Before the Magistrate, counsel for the respondent/complainant submitted to the Magistrate that, on all of the facts, Western Power had failed to meet its statutory duty to provide a safe working environment, as required by s 19(1)(a) of the Act, and that by that contravention had caused Mr Tan's death, contrary to s 19(7) of the Act. Counsel contended that the permit system used by Western Power left room for mistakes, error and misjudgment by a wide range of employees with a different range of capacities and experience, and that it was reasonably practicable to account for this possibility of misjudgment by placing the danger zone of high voltage components above the ordinary reach of an employee standing on the ground. Counsel further submitted that it was not necessary for the prosecution to show that the precise sequence of events that led to Mr Tan's death was foreseeable and that it was sufficient if a consequence of the same general character was reasonably foreseeable.
19 On behalf of Western Power, senior counsel submitted to the Magistrate, in effect, that Western Power had done all it could to ensure that its employees were not exposed to hazard at the Ladyloch electricity substation, particularly when one took into account the systems employed and the permit system in place whereby a person in Mr Tan's position should not enter the electricity substation; and as a result it was not foreseeable from the employer's point of view that Mr Tan would enter the substation and be exposed to an energised ground level transformer.
20 In the event, the Magistrate ruled in relation to the question of foreseeability in the following terms, at page 49 of the "Reasons for Decision":
(Page 8)
- "In looking at the question of foreseeability the Defendant had to guard against acts or omissions which may foreseeably cause injury in a context where long experience has shown that employees do sometimes act inadvertently or without due care for their own safety. It is sufficient if a consequence of the same general character was reasonably foreseeable. I conclude that it was reasonably foreseeable that an employee, albeit, without due care for their own safety, might enter the Ladyloch substation while the substation was live.
It seems to me that the actions of Pike and Tan, as tragic as they were in the consequence, were at all times intended to be purposeful and safe. The idea was to save others from having to perform a duty. The means of access was available and the task apparently perceived as straightforward. Once the problem and a solution appeared action followed. The permit system was no barrier.
With hindsight the problem was minor, the solution entirely inappropriate and the consequences tragic. However it seems to me that the event was foreseeable."
and convicted Western Power of the offence alleged in the complaint.
The essential issue on this appeal
21 In these proceedings, the appellant was granted leave to appeal on four issues:
1. Was the Magistrate correct in concluding that it was reasonably foreseeable by Western Power that the deceased would enter the substation compound while a transformer was energised? (Ground 1(a)(ii))
2. Was the Magistrate correct in concluding that the substation compound was part of the working environment of the deceased? (Ground 1(a)(i))
3. Was the Magistrate correct in concluding that the complainant had proven to the requisite standard that Western Power had breached the statutory standard of care having regard to the uncontradicted evidence relating to Western Power's systems of training, instruction and work practices?
(Page 9)
- 4. Was the Magistrate correct in concluding that the complainant had proven beyond a reasonable doubt that Western Power provided the plant, in the form of the energised transformer, which caused the death of the deceased? (Ground 1(b))
- At the hearing , ground 1(b) was not pursued.
22 Senior counsel for Western Power submitted that the various grounds of appeal could be reduced to "one essential issue"; namely, whether the Magistrate was correct in his conclusion that the appellant could and should have reasonably foreseen that the deceased would enter the substation compound while the transformer was energised. This was the point argued on the appeal before me.
The nature and extent of the s 19(1)(a) duty
23 Before addressing this one essential issue, it is appropriate to note some features of the offence alleged, its source, and the way it has been judicially treated. First, it must be observed that the duty imposed by s 19(1)(a) is not to be found in the general law, as, for example, is the duty of care that an employer owes an employee for the purposes of the common law of negligence. Rather, it is a duty created by Parliament, through statute, to achieve what the Parliament considers to be a desirable standard of occupational safety and health in Western Australia.
24 To understand properly the nature and extent of the statutory duty so created, it is necessary to have regard to the very particular terms "practicable" and "risk" employed in relation to this duty.
25 The term "practicable", referred to in s 19(1), is defined by s 3 of the Act to mean:
"… reasonably practicable having regard, where the context permits, to ¾
(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 ¾
(i) the injury or harm to health referred to in paragraph (a);
(ii) the risk of that injury or harm to health occurring; and
(Page 10)
- (iii) means of removing or mitigating the risk or mitigating the potential injury or harm to health;
- and
(c) the availability, suitability, and cost of the means referred to in paragraph (b)(iii);"
26 The term "risk", referred to in the definition of "practicable", is defined by s 3 in the following way:
"'risk', in relation to any injury or harm, means the probability of that injury or harm occurring;"
27 As a result, it can readily be appreciated, as the authorities confirm, that the duty imposed by s 19(1) is not, and is not intended to be, an absolute one. It is a duty only so far as it is "practicable" to provide and maintain a working environment to ensure employees are not exposed to hazards: Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 251, per Brennan J; Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100 at 109 - 110, per Wallace J (with whom Rowland J agreed at 121); Hamersley Iron Pty Ltd v Robertson, unreported; SCt of WA; Library No 980573; 2 October 1998 at 15 (in relation to the terms of a similar provision in s 9(1) of the Mines Safety and Inspection Act 1994 (WA)).
28 The question of what is "practicable" in any given context may differ from one situation to another and may well differ over the course of time by reason of an increasing state of knowledge that employers have about the risk of injury or harm to health occurring and the means available of removing or mitigating that risk, as well as the availability, suitability and cost of the means of removing or mitigating the risk being more advantageous to an employer from a practical and commercial point of view. Indeed, concerning what is practicable from time to time, it might be said that, what was said by Mason, Wilson and Dawson JJ in Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 308 - 309, in respect of what reasonable care requires under the general law – namely, that what it requires "will vary with the advent of new methods and machines and with changing ideas of justice and increasing concern with safety in the community" – applies with equal force.
29 As what may be practicable to avoid or minimise hazard may change from time to time, this perhaps suggests that at any point in time it may be appropriate to ask whether any particular form of hazard is or was
(Page 11)
- foreseeable. Depending on whether or not it is, a particular form of hazard avoidance or minimisation might be available, cost effective and so on, that is to say "practicable" in terms of s 3 of the Act.
30 In this regard it is interesting to note that in their joint judgment in Chugg (supra), Dawson, Toohey and Gaudron JJ (with whom Brennan J and Deane J in separate judgments generally agreed) reflected on the relevance of foreseeability in this type of statutory context. In that case, the High Court, in the course of deciding that the prosecution, and not the defendant, bore the onus of showing whether measures to mitigate exposure to harm were "practicable", considered the terms of the duty imposed by s 21 of the OccupationalHealth and Safety Act 1985 (Vic) and the definition of "practicable" in s 4 of that Act. These sections respectively were similar in content to s 19 and s 3 of the Act in this State. Section 21 of the Victorian Act relevantly provided that:
"(1) An employer shall provide and maintain so far as is practicable for employees a working environment that is safe and without risks to health.
(2) Without in any way limiting the generality of sub-section (1), an employer contravenes that sub-section if the employer fails --¾
(a) to provide and maintain plant and systems of work that are so far as is practicable safe and without risks to health."
- Under s 4 of the Victorian Act, the term "practicable" was relevantly defined to mean:
"practicable having regard to -
(a) the severity of the hazard or risk in question;
(b) the state of knowledge about the hazard or risk and any ways of removing or mitigating that hazard or risk;
(c) the availability and suitability of ways to remove or mitigate that hazard or risk; and
(d) the cost of removing or mitigating that hazard or risk."
(Page 12)
31 Without finally needing to determine the question, their Honours noted, at 265:
"It is clear from the definition of 'practicable' in s 4 of the Act that the issue of practicability requires some consideration of the question of foreseeability."
32 In R v Australian Char Pty Ltd [1999] 3 VR 834; (1995) 79 A Crim R 427, the Victorian Court of Criminal Appeal (Phillips CJ, Smith and Ashley JJ) also addressed the question of foreseeability in the context of s 21 of the Victorian Act. A worker was injured when he placed his hand between a conveyor belt and a drum. A prosecution alleging breach of s 21 on two counts went before a jury. The trial judge charged the jury on the meaning of "practicable" by telling them it required an objective test and by referring to dicta of Harper J from Holmes v R E Spence & Co Pty Ltd (1992) 5 VIR 119 at 123-124. He also directed the jury that an employer is bound to have regard to the risk that its employees would act inadvertently or without reasonable care for their own safety.
33 The dicta of Harper J from Holmes (supra) that the trial judge quoted to the jury was that:
"The act does not require employers to ensure that accidents never happen. It requires them to take such steps as are practicable to provide and maintain a safe working environment. The courts will assist the attainment of this end by looking at the facts of each case as practical people would look at them, not with the benefit of hindsight, nor with the wisdom of Solomon, but nevertheless remembering that one of the chief responsibilities of all employers is the safety of those who work for them. Remembering also that, in the main, such a responsibility can only be discharged by taking an active, imaginative and flexible approach to potential dangers in the knowledge that human frailty is an ever present reality. This, indeed, is an element which often turns what would otherwise be a positive result into a negative one, so that, for example, the minor but less obvious traps may present a greater danger than the major and more obvious ones … One must then weigh the chances of spontaneous stupidity, or a fall, or the like, against the practicability of guarding the machine so as to maintain its function while preventing the human factor from resulting in injury. If the danger is slight and the installation of a guard would be impossibly expensive, or render the machine unduly
(Page 13)
- difficult to operate, then it maybe that the installation of that guard is properly to be regarded as impracticable. Each case must be decided on its own facts."
34 In Australian Char (supra), the Court of Criminal Appeal held there was no misdirection by the trial judge in putting the issue of practicability to the jury in these terms. In particular the Court considered, at 846, the exposition of the law of Harper J to have been "full and accurate". The Court there added:
"The necessity for an objective approach was implicit in the judgment of Harper J … He was careful to warn against the dangers of use of hindsight. When he referred to 'the knowledge that human frailty is an ever present reality' of which an employer's responsibility under the Act must take account, he was no doubt referring to an aspect of practicability derived from principles pertaining to common law actions in negligence for damages. When he referred to 'the chances of spontaneous stupidity, or a fall, or the like' he was doubtless adverting to the types of matters which may bear upon foreseeability of risk of injury and hence may bear, inter alia, upon 'the severity of the hazard or risk in question'."
35 The Court, at 847, then went on to observe:
"It is one thing to say that s 21 imports concepts applicable to the tort of negligence - a proposition implicit in the joint judgment of Dawson, Toohey and Gaudron JJ in Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 265. But it is another matter to conclude that s 21 requires the occurrence of an accident to an employee against which to consider an employer's acts or omissions. The obligation cast upon the prosecution is that it identify, with sufficient particularity, the breach of s 21(1) upon which it relies. In that context the prosecution carries the onus of proof in relation to practicability: Chugg at 249. Nothing in that obligation requires that an accident involving injury to an employee has occurred. It is consistent with this analysis that s 21 'confers neither a civil cause of action nor a defence to a civil action: s 28': Chugg at 260…
It follows from what we have said that proof of an offence against ss 21 and 47 is not dependent upon there having been an
(Page 14)
- accident and injury to an employee. So, considerations apposite to the common law tort of negligence are not, in the context of an alleged breach of s 21, necessarily confined by a requirement of foreseeability of injury to a particular employee, that employee having in fact suffered injury. That does not mean, however, in the event that an accident has occurred and injury has been sustained, that the prosecution is precluded from conducting its case on a narrow basis. That was here the situation. The prosecution sought to establish breach of s 21 simply by reference to the circumstances in which injury was sustained by Evans. It was not obliged to take such a course in principle; but that is the forensic choice it made. Even limited by that context, however, the passage cited from Holmes did no more than set a proper framework for the jury's inquiry."
36 It is also worthy of note, though not a passage the trial Judge quoted to the jury in AustralianChar, that in Holmes (supra), at 126, in relation to the argument that the employee's actions were not reasonably foreseeable by the employer, Harper J added:
"The question in cases such as the present is not whether the detail of what happened was foreseeable, but whether accidents of some class or other might conceivably happen, and whether there is a practicable means of avoiding injury as a result." (Emphasis added)
37 The approach taken by the Victorian Court of Criminal Appeal in Australian Char (supra) has been endorsed and applied in this State in a number of cases. Most recently, in Tenix Defence Pty Ltd v MacCarron [2003] WASCA 165 at [47], EM Heenan J rejected a submission that the approach taken in Australian Char should not be adopted in this State by reason of differences between s 21 of the Victorian Act and s 19 of the Act in this State. While accepting that the terms of the two provisions were not identical, EM Heenan J was satisfied, at least in relation to the circumstances of the case then before him, that the differences were not material and that the judgment in Australian Char "contains an accurate description of the principles which apply in the case of a complaint alleging an offence against s 19". With his Honour I respectfully agree.
38 In that case, at [48], EM Heenan J considered that the Magistrate who had found the statutory duty in s 19 of the Act to have been breached had correctly appreciated that the test for providing a system of work such that, so far as is practicable, was one which avoided exposure of
(Page 15)
- employees to hazards "involved a balancing exercise and that employers were not required to anticipate every possible combination of circumstances which might expose an employee to risk". His Honour also accepted that the Magistrate was not unappreciative of the fact that "practicable" means reasonably practicable, having regard to the factors mentioned in the definition of that term in s 3, including the degree of the risk of the potential injury or harm occurring and the means of removing or mitigating that risk and the availability, suitability and cost of the means referred to for avoiding it.
39 It is plain the authorities require the "balancing exercise", as EM Heenan J called it, to be conducted by reference to the facts of each case. Consequently, in MacCarron v Coles Supermarkets Australia Pty Ltd [2001] WASCA 61; (2001) 23 WAR 355, where a 13-year-old boy employed to collect shopping trolleys from around a shopping centre and return them to the Coles and Kmart stores at the centre was struck by an elastic strap which had been used to keep a number of shopping trolleys together whilst he was returning the trolleys to the Woolworths store at the centre and died from injuries, the majority was not satisfied the s 19 duty had been breached on the knowledge available. Murray J, at 389, with whom Wallwork J agreed on this question, said:
"The evidence of those persons who were associated with the operation of Rosalie's Trolleys was effectively that they had no knowledge of any danger associated with the use of elastic straps …
The question of practicability, in my opinion, had to be related back to the identified hazard that in some undefined way the employee might be struck by an elastic strap in such a way as to cause the kind of injury and the death which in fact ensued. Certainly it was reasonably practicable to take simple steps to obviate the risk if it was known, or reasonably foreseeable. Another means of securing the trolleys was in fact available at the time and other similar perfectly safe means might be readily imagined. The severity of the potential injury or harm of the kind which in fact occurred was, of course, very great, but the degree of risk of it occurring at the time was entirely unknown … At the time the accident happened, it was, I think, on the evidence before the learned magistrate, an entirely surprising event."
(Page 16)
40 By contrast, Kennedy J, at 372, dissented in relation to this view, and would have found that the evidence before the Magistrate was capable of supporting a verdict of guilty. His Honour there stated that:
"In the present case, the third respondent's work practices might be held to have been deficient. The evidence was that parts of the area over which the trolleys had to be moved sloped. There might be held to be a risk that trolleys would break loose unless tied together. There were, however, no instructions given to the boys to use ropes to tie the trolleys together, it being left up to them to obtain ropes if they wished to do so. A practical system of work might have involved the compulsory use of ropes. Andrew had obtained for himself an occy strap to secure the trolleys. His use of the occy strap caused his death. Whether there was a work environment in which Andrew was exposed to the risk of being struck by an occy strap and whether the failure to maintain a safe work environment caused Andrew's death is for the magistrate to determine."
41 In Tenix (supra), EM Heenan J noted, at [44], that when one speaks of foreseeability in the context of s 19 of the Act, whether objective foreseeability of a reasonable employer or the subjective foreseeability of a particular employer:
" … it is not necessary to show that the precise sequence of events which led to the death was foreseen or foreseeable. This is not the test for foreseeability because it is sufficient in the circumstances to ask whether a consequence of the same general character as that which followed was reasonably foreseeable as one not unlikely to follow from the use of electric arc welding apparatus in a confined space and in hot working conditions - see Chapman v Hearse (1961) 106 CLR 112 at 120."
42 Again, having regard to what the Victorian Court of Criminal Appeal said in Australian Char (supra) at 487, and also to what was said by Harper J in Holmes (supra) at 126, the question of whether the statutory duty in s 19(1)(a) of the Act has been breached in any given case is not governed by whether a particular injury, in the present case death, of an employee was foreseeable by the particular means by which it occurred, but rather whether an accident of some class, including the class by which injury, or, as in this case, death, might follow, might conceivably happen,
(Page 17)
- and whether there is a practicable means of avoiding the injury, or, in the present case, death.
Application of the s 19(1)(a) duty in this case
43 In the present appeal, the Magistrate considered that it was reasonably foreseeable that an employee, not necessarily Mr Tan, might enter the Ladyloch substation while the substation was live. I think, properly analysed, the Magistrate's findings as to the circumstances in which Mr Pike and Mr Tan decided to enter the electricity substation enclosure should be taken as an illustration of the Magistrate's view that it was conceivable that employees might enter the substation in unusual, but explicable, circumstances, and notwithstanding their ordinary appreciation that they should not do so without their employer's authorisation.
44 To overcome this view of what the Magistrate found, or to tackle the same issue from another angle, senior counsel for Western Power contended that, on the findings of fact made by the Magistrate, Mr Pike's conduct could only be characterised as wilful disobedience and that Mr Tan could and would not have entered the substation compound but for that wilful disobedience. Thus, on this view, there was nothing more the employer could possibly have done, in terms of practicable measures, to prevent an event such as that which resulted in Mr Tan's regrettable injuries and death.
45 For my part, I do not consider that the Magistrate's findings in respect of Mr Pike's conduct permit Mr Pike's conduct to be characterised as constituting wilful disobedience. The Magistrate found, as noted, that Mr Pike was unable properly to explain why he entered the substation having regard to his training, experience and knowledge that one should only enter such a substation with permission. However, it is, in my view, clear from both the context in which the Magistrate made his findings concerning the conduct and behaviour of Mr Pike, and from Mr Pike's own evidence, that Mr Pike's inability to explain why he entered the compound with Mr Tan reflected his best attempts, after the awful event, to explain why he did what he did, when all his training, experience and knowledge of Western Power's rules should have resulted in him refraining from entering the substation compound on the day in question and taking Mr Tan with him.
46 The Magistrate clearly found why it was that Mr Pike and Mr Tan decided to enter the electricity substation. They decided to clear the sapling there and then and so save someone else the trouble of doing it later. Under Western Power Corporation's rules they should not have
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- entered, that is clear. However, that Mr Pike chose to do so, or that he may have acceded to a course of action the two of them proposed, does not mean that, in the circumstances, Mr Pike acted in a wilfully disobedient way towards his employer. For present purposes, I think the most that can be said of Mr Pike's actions is that he acted with considerable misjudgment, having regard to his training and experience and his knowledge of his employer’s permit system.
47 In my view, notwithstanding Western Power Corporation's sensible procedures and systems, including the permit system concerning access to facilities such as the Ladyloch electricity substation, on the evidence before the Magistrate, it was open to him to find that it was conceivable that an experienced linesman, such as Mr Pike, in the course of carrying out meter reading duties at his employer's facilities, including an electricity substation, in various parts of the Kalgoorlie goldfields area, and at the same time conducting an orientation tour of those facilities for the benefit of a graduate engineer, such as Mr Tan, and who held the type of key required to gain entry to an electricity substation, might decide, or concur in a suggestion made by a graduate engineer, to enter the electricity substation for the purpose of removing some vegetation that might eventually prove problematic to the operation of the substation and so save some other Western Power employee the trouble of travelling to Coolgardie to perform what appeared to be a relatively simple task, might decide to enter the substation and permit the graduate engineer to accompany him for that limited purpose.
48 Thus, while it may not have been "foreseeable" by Western Power that Mr Tan would have occasion to enter the Ladyloch electricity substation at Coolgardie during his orientation tour with Mr Pike on the day in question, it was conceivable that an employee of Western Power might enter that substation without a permit as required by the procedures and systems employed by Western Power at material times in the circumstances just described. That, plainly, is what the Magistrate had in mind when he stated, in his reasons for decision, that: "It is sufficient if a consequence of the same general character was reasonably foreseeable" and that "it was reasonably foreseeable that an employee, albeit, without due care for their own safety, might enter the Ladyloch substation while the substation was live".
49 There was no doubt, on the evidence before the Magistrate, that the means were available to Western Power, and were well within their knowledge and financial reach, to avoid any hazard to an employee who might enter the electricity substation, albeit without a permit, from being
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- electrocuted in the manner that Mr Tan was electrocuted, by raising the transformers to an appropriate height that would prevent an employee brushing, or otherwise inadvertently touching, a live transformer.
50 In this context it was open to the Magistrate to find that what in fact happened to Mr Tan was "foreseeable", to use the Magistrate's expression, and that Western Power's failure to take obvious measures known and available to it for removing the hazard of a ground level "live" transformer from near the pathway of a person walking in the Ladyloch electricity substation compound contravened the duty imposed on it by s 19(1)(a) of the Act, to so far as is practicable, provide and maintain a working environment in which its employees are not exposed to hazard.
51 It was also open to the Magistrate, on the evidence before him, to find that Western Power's contravention of its duty to provide such a safe working environment caused the death of Mr Tan.
Conclusion and Order
52 In those circumstances, on the evidence before him, the Magistrate was entitled to find Western Power Corporation committed an offence under s 19(7) of the Act.
53 It follows that the appeal should be dismissed.
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