(d) the relevant "failure" on the part of the respondent and a causal relationship between its conduct and the consequent risk to health, safety or welfare.
In the result, it was submitted the reliance by the respondent on the s 53 defence for particular (a) fails.
46 It was submitted that it was necessary for the tribunal of fact to weigh the quantum of the risk against the sacrifices involved in measures necessary to avoid the risk, such as time, money and inconvenience. Reasonable foreseeability is relevant to assessing the level of risk but at no stage did her Worship carry out such an assessment. Further, it was submitted that what is not reasonably foreseeable can only equate with what is reasonably impracticable in the most rare of circumstances; the present circumstances were not in that category.
47 It was further submitted that, in failing to give consideration to the relevant factors, her Worship failed not only to consider the degree of risk but also the consequences and potential consequences of the risk. In this respect, counsel drew attention to Paris v Stepney Borough Council [1951] AC 367 where it was recognised that measures taken to avoid risk are to be directly related to the possible results of the risk so that an employer would not, for example, allow a partially blind worker to perform work which would put his eyes at risk without protective goggles.
48 The appellant also submitted that her Worship erred in finding that the relevant incident was not reasonably foreseeable. The appellant submitted that this error is clear in light of her Worship's findings in relation to the condition of the pier. Her Worship concluded that the evidence showed the pier's condition was such that it was a structure which "would topple if it were touched" and "posed a real risk to any person near it." Further, her Worship found that there was a real possibility that any worker touching the pier would create a risk to workplace health and safety. Counsel drew attention to her Worship's use of those words, and submitted that reference by her Worship to a "real possibility" and a "real risk" could not be anything other than a finding that the risk was reasonably foreseeable. Further, the "real possibility" and "real risk" should be considered in light of the absolute duties under the Occupational Health and Safety Act which requires employers to be on the offensive and to take a pro-active approach to search for, detect and eliminate, so far as is reasonably practicable, risks to workplace safety, health and welfare.
49 Counsel further submitted that her Worship's error in considering that the incident was not reasonably foreseeable arose from her failure to give adequate weight to, or from a misunderstanding of, the evidence as to the condition of the pier and the risk it thereby presented to the workers on site. This error led her Worship to find that it was not reasonably foreseeable and therefore not practicable for the respondent to take measures to guard against the risk. Her Worship was inappropriately influenced by the evidence of Mr Grice that the pier was safe. Mr Grice's evidence was given in the context of his extensive experience in the industry and his practice of making daily inspections of the site. The appellant submitted that her Worship failed to balance this evidence with the evidence that Mr Grice was not in attendance on the day of the incident and had not made any assessment of risk until after the pier collapsed. Further, his evidence should have been considered in the context of the respondent's responsibility to seek out and reduce or eliminate risks. The appellant submitted the requirement was not satisfied by an employer or its representative or agent relying on past experience in the industry. What is required is a pro-active approach and pro-active measures.
50 Her Worship also referred to the evidence of Mr Ryan, the bricklayer who initially constructed the piers, who also considered the pier was safe. The appellant submitted her Worship's approach showed error in that there is a misunderstanding as to the evidence by failing to consider evidence that Mr Ryan had not worked on the piers since 18 July 1997, whereas the incident occurred some days later on 22 July 1997. Further, the respondent should have foreseen the risk as the purpose of bracing a wall is to guard against wind loading. Mr Grice himself admitted that cranes can get "out of control", and no person is therefore permitted to work underneath the slewing area of the crane.
51 The appellant also submitted that appellable error was shown by her Worship's application of s 53 notwithstanding her identification of the relatively simple measures which could have avoided the risk, such as bracing the structure or taping off the area. The error was in not applying the correct test under s 53(a) and therefore failing to balance the likelihood and severity of the risk with the cost of practical measures which could have safeguarded against the risk. It is also relevant that the respondent had the obligation or onus of showing that the sacrifice involved in taking preventative steps was too onerous in comparison to the risk and its possible consequences.
52 The appellant submitted that the respondent failed to make out a case on the relevant basis and thereby failed to discharge its onus to prove the defence on the civil standard. It was submitted that nothing was put forward by the respondent to show that steps which could have been taken were so difficult, expensive or time consuming that they could not be done. Her Worship thus erred in applying s 53(a) where the respondent had not discharged its onus.
53 The appellant also submitted that her Worship committed appellable error in rejecting the application of reg 77 of the Construction Safety Regulations since the regulation sets a standard which should have placed the respondent on notice of the unsupported pier as a potential safety hazard. Her Worship's construction of the regulation would lead to inconvenient and irrational results: for example, that a wall over 1.5 metres should be braced but a pier 2.34 metres high constructed on top of a wall one metre high did not require bracing. The appellant submitted, in the alternative, that if the regulation did not apply it nevertheless directed attention to the potential of danger implicit in an unbraced structure. The legislation requires more than a visual inspection which leads to a person on site concluding the structure is satisfactory or safe. This submission was said to be supported by the judgment of Hill J in University of Sydney .
54 Counsel for the respondent conceded that steps could have been taken to secure the pier and it was not submitted that such steps were inappropriate, unavailable or so costly that they were impracticable. The respondent also conceded that the delegation of responsibility or retention of qualified contractors was not sufficient to invoke the defence. However, the respondent submitted that, on the objective test of reasonable foreseeability, it was not reasonably practicable to guard against the risk without the benefit of hindsight. The instability of the pier at the time of the incident was not discoverable as there were no signs which may have alerted a reasonable person to the risk. The respondent submitted that her Worship's approach was correct.
55 The respondent also submitted that there was no evidence the pier was inherently unstable by reason of its design or construction. The risk was not, as was the case in Shannon v Comalco Aluminium Ltd , known to science, nor was it a real as opposed to a remote or theoretical risk. Mr Grice was aware of the respondent's obligations to be pro-active in seeking out risks to safety and that awareness was shown by his daily inspections. WorkCover inspectors had also inspected the site, including similar or identical structures to the pier, and had not seen any risk or issued directions or improvement notices. Mr Grice, an experienced and knowledgeable person in the construction industry, considered the pier was safe and the appellant relies upon the opinion of Inspector Bultitude, whose qualifications as an expert were limited to his on-the-job experience.
56 The respondent accepted the Occupational Health and Safety Act required a pro-active approach to safety, but submitted that the obligation only extends to risks which, on the basis of an objective test, are reasonably foreseeable. The respondent submitted that the appellant has not established that there was an obvious and foreseeable risk and there was nothing in the evidence which should have alerted the respondent to the presence of a risk. It followed, therefore, that her Worship's approach should not be disturbed.
The nature of the appeal
57 It was common ground that s 191 of the Industrial Relations Act applies to the nature of the appeal to the extent that the decision is discretionary ( Stone Microsystems (Aust) Pty Ltd v Kwong (1997) 42 NSWLR 160 at 163), and requires the application of the approach settled in cases such as House v The King (1936) 55 CLR 499 and Mace v Murray (1955) 92 CLR 370. The appeal is therefore governed by the principles applicable to appeals generally brought under Pt 7 of Ch 4 of the Act. The particular principles applicable will vary according to the nature of the decision the subject of appeal. In Drake Personnel (90 IR 432 at 446) the Full Bench observed:
Before setting out our reasons for this conclusion, we emphasise that the principles to be applied to the hearing of an appeal will vary according to the nature of the decision appealed against. An appeal against a discretionary decision will be dealt with according to the principles applicable to the review of those decisions, while appeals on questions of fact or law will proceed on the basis of an appeal in the strict sense. The relevant principles have been considered in detail in previous decisions of this Commission and its predecessors in cases such as Re Government Cleaning Service (Privatisation) Award (No 3) ( 1995) 59 IR 348; Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149; Re Solicitors (State) Award (No 3) (1996) 72 IR 225; Stone Microsystems (Aust) Pty Ltd v Kwong (1997) 42 NSWLR 160.
In appeals in criminal proceedings, a number of possibilities may arise. An appeal against sentence is an appeal against a discretionary decision and the relevant principles are those relating to the review of discretionary decisions (see, for example House v The King (1936) 55 CLR 499 at 505). An appeal against conviction, on the other hand, may involve an appeal against determinations of fact and/or law. In an appeal in the strict sense, a conviction will be upset only if the court below has fallen into an error of law or made a relevant error in fact finding.
58 The Full Bench held in WorkCover Authority of New South Wales (Inspector Keenan) v Technical and Further Education Commission (1999) 92 IR 251 at 260 that that approach was relevant to appeals, as here, pursuant to s 197A. The Full Bench also observed that the principles laid down by this Court in Warman International Ltd v WorkCover Authority (NSW) (1998) 80 IR 326 and by the Court of Appeal in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683, which dealt variously with the approach to appeals pursuant to s 196 of the Industrial Relations Act and s 5AA of the Criminal Appeal Act 1912 as the latter provision stood prior to its amendment in 2000 by the Courts Legislation Amendment Act 2000, were not applicable. We affirm the position thus stated.
Consideration - leave to appeal
59 We conclude that leave to appeal is required in appeals under s 197A of the Industrial Relations Act and that leave to appeal should be granted in this appeal. We shortly state our reasons for these conclusions. The appeal raises issues of general importance, including the significant issue whether leave to appeal is required in an appeal pursuant to s 197A. Leave should therefore be granted in order to settle that issue. Further, we are of the opinion that her Worship has plainly committed appellable error in finding that the respondent had satisfied the burden in showing that a defence under s 53 was available to it by a misapplication of settled principle. Leave should be also granted on that basis.
60 Both parties accepted that the legislative scheme presented some difficulties as its construction was somewhat unclear. We consider that these issues are to be resolved in accordance with the ordinary tenets of statutory construction as outlined in Drake Personnel , where the Full Bench dealt with similar questions as to the construction of appeal provisions under Pt 7 of Ch 4. After considering, inter alia , the approach of Kirby P in New South Wales v Macquarie Bank Ltd (1992) 30 NSWLR 307 at 319, the Court there said (at 445):
We consider that the approach stated provides that which should be adopted in this appeal. That is, that the primary task of the court is to ascertain the intention of parliament by examining the language of the legislation itself. If the terms of the legislation are clear, so is the duty of the court. If, however, the legislation is ambiguous or uncertain the court must decide between contending interpretations. In doing so, the court should prefer the construction which best accords with the evident purpose of parliament in enacting the legislation. Relevant considerations include the need to avoid a construction the consequences of which are manifestly inconvenient, absurd, irrational or capricious or which would result in serious injustice: see, for example, Clarke v Bailey (1993) 30 NSWLR 556 at 566.