WESTERN POWER CORPORATION -v- SHEPHERD [2004] WASCA 233

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 233
Case No:	SJA:1141/2003	Heard:	5 AUGUST 2004
Coram:	BARKER J	Delivered:	15/10/04
No of pages:	19	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	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

CITATION : WESTERN POWER CORPORATION -v- SHEPHERD [2004] WASCA 233 CORAM : BARKER J HEARD : 5 AUGUST 2004 DELIVERED : 15 OCTOBER 2004 FILE NO/S : SJA 1141 of 2003 BETWEEN : WESTERN POWER CORPORATION

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,…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2004] WASCA 233
Decision Date: 15 OCTOBER 2004

CaseChat Overview and Summary

In the case of Western Power Corporation v Shepherd, the respondent, Mr Shepherd, was convicted under section 19(7) of the Occupational Safety and Health Act 1984 (WA) for an incident at work that resulted in serious injury. The appellant, Western Power Corporation, sought to appeal the conviction on the grounds that the primary judge misinterpreted the meaning of "practicable" and "foreseeability" in the context of the statutory provision. The case was heard in the Court of Appeal of the Supreme Court of Western Australia.

The primary legal issue before the court was whether the respondent's conduct constituted wilful disobedience of a provision of the Occupational Safety and Health Act 1984 (WA). The court was required to determine the meaning of the terms "practicable" and "foreseeability" in the context of section 19(7) of the Act and whether the respondent's actions were within the scope of this provision. The court also had to consider whether the primary judge's interpretation of the statutory language was consistent with the statutory purpose and whether the respondent's conduct was wilful and disobedient.

The court held that the primary judge's interpretation of "practicable" and "foreseeability" was consistent with the statutory purpose and that the respondent's actions constituted wilful disobedience of a provision of the Occupational Safety and Health Act 1984 (WA). The court emphasised that the meaning of these terms must be determined on a case-by-case basis, taking into account the specific facts and circumstances of each case. The court found that the primary judge's interpretation of the statutory language was consistent with the statutory purpose and that the respondent's conduct was indeed wilful and disobedient. The appeal was dismissed, and the conviction was upheld.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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