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Worboyes v R

Worboyes v R

Case [2020] VSCA 169 23 June 2020

Appeal

Breach of Contract

Reasonably Practicable

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0019

KEILOR MELTON QUARRIES	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, HARGRAVE and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 February 2020
DATE OF JUDGMENT:	23 June 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 169
JUDGMENT APPEALED FROM:	[2018] VCC 2139 (Judge Lyon)

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CRIMINAL LAW – Appeal – Conviction – Occupational health and safety – Quarrying operations – Truck carrying loads to top of stockpile – Risk of accident – Whether applicant had ‘management or control’ of operations which created risk – Applicant had sole legal authority to carry out quarrying works – Applicant had right to control operations at quarry – Sufficient to establish control – Baiada Poultry Pty Ltd v The Queen [2011] VSCA 23 followed, Occupational Health and Safety Act 2004 ss 4, 20, 21, 26.

CRIMINAL LAW – Appeal – Conviction – Occupational health and safety – Reasonable practicability of safety measures – Quarrying operations – Truck unloading at top of stockpile – No protective barrier at edge of stockpile – Whether subsisting risk of accident – Applicant did not intend trucks to unload at top of stockpile – No barrier to truck access – Risk subsisted – Fatal accident evidenced existence of risk – No practical or financial obstacle to implementation of safety measure – Applicant had duty to implement – Leave to appeal refused – Occupational Health and Safety Act 2004 ss 20, 21, 26.

WORDS AND PHRASES – ‘control’, ‘reasonably practicable’.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A Palmer QC	Stary Norton Halphen
For the Respondent	Mr D D Gurvich QC with Mr T Bourbon	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
HARGRAVE JA
WEINBERG JA:

Summary

On 23 May 2016, Robert Wallace was working at a quarry at which basalt and scoria were being extracted.[1] He was driving a truck taking loads of extracted scoria to an existing stockpile. Making his sixth or seventh trip of the morning to the top of the stockpile, Wallace reversed his truck to the edge of the stockpile. Before he could release the load, the truck flipped over the edge and slid down the side of the stockpile. Wallace died from injuries sustained in the accident.
[1]The prosecution’s expert witness, Mr David Lucas, described basalt as an ‘igneous rock used for a variety of construction purposes’ and scoria as a ‘vesicular igneous rock’. He said that, while basalt and scoria were ‘similar materials’, they were ‘quarried in separate … parts of the operation’.

The applicant (‘KMQ’) was convicted after a trial in the County Court of breaching s 26(1) of the Occupational Health and Safety Act 2004 (the ‘Act’). The guilty verdict reflected the jury’s satisfaction, beyond reasonable doubt, that KMQ:

(a) had the ‘management or control’ of those aspects of the quarry operations which created the risk to the safety of the drivers; and

(b) had failed to ensure ‘so far as was reasonably practicable’ that that…

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.

Continue reading Worboyes v R

Details

AGLC: Keilor Melton Quarries v The Queen [2020] VSCA 169
Case: [2020] VSCA 169
Decision Date: 23 June 2020

CaseChat Overview and Summary

In the Supreme Court, Worboyes appealed against his conviction for a breach of occupational health and safety obligations. The case arose from an incident at a quarrying operation where a truck carrying a load to the top of a stockpile rolled backwards, causing the death of a worker. The applicant, Worboyes, had sole legal authority to carry out the quarrying works and the right to control operations at the quarry. The primary issues before the court were whether the applicant had sufficient 'control' over the operations that created the risk of an accident, and whether it was reasonably practicable to implement a safety measure to mitigate this risk.

The court examined whether Worboyes had sufficient control over the operations to be held liable under the Occupational Health and Safety Act 2004. It was established that he had sole legal authority to carry out the quarrying works and the right to control the operations at the quarry, which was sufficient to establish control. The court followed the decision in Baiada Poultry Pty Ltd v The Queen, holding that the applicant's authority over the operations was enough to establish control. The court also found that the risk of an accident, evidenced by the fatal accident, subsisted despite the applicant not intending for trucks to unload at the top of the stockpile. There was no practical or financial obstacle to implementing a safety measure, such as a protective barrier at the edge of the stockpile, and the applicant had a duty to do so.

The court found that Worboyes had control over the operations and that it was reasonably practicable to implement a safety measure to mitigate the risk of an accident. Consequently, the appeal was dismissed, and Worboyes' conviction was upheld. The court made no orders regarding costs.

Orders