Bultitude v Grice Constructions Pty Limited

APPELLANT: Mr B G Docking of counsel WorkCover Authority of New South Wales (Ms Karen Parsons) LEGAL REPRESENTATIVES: RESPONDENT: Mr P E Blacket SC with Mr M P Cahill Lobban McNally & Harney, Solicitors (Mr Terence J McNally)

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH

CORAM: WRIGHT J, President WALTON J, Vice-President HUNGERFORD J

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR RICK BULTITUDE) v GRICE CONSTRUCTIONS PTY LIMITED Appeal by WorkCover Authority of New South Wales (Inspector Bultitude) against a decision given by Industrial Magistrate Barkell on 5 May 2000 in Matter No CIM 1182 of 1999

JUDGMENT OF THE COURT [2002] NSWIRComm 20 1 This is an application pursuant to s 197A of the Industrial Relations Act 1996 by Inspector Rick Bultitude of the WorkCover Authority of New South Wales (the appellant) for leave to appeal and, subject to leave being required and granted, an appeal against a decision given by Ms Barkell, Industrial Magistrate, on 5 May 2000 in which her Worship acquitted the respondent, Grice Constructions Pty Limited, the defendant in proceedings under the Occupational Health and Safety Act 1983. 2 The proceedings before her Worship involved an alleged breach of s 16(1) of the Occupational Health and Safety Act . Her Worship found the appellant had made out the charge laid by reference to one of the particulars. However, the charge was dismissed on the basis that the respondent was held to have established a defence pursuant to s 53 of the statute. 3 The charge arose from an incident on a building construction site on 22 July 1997 in which Mr Ivan Katic, an employee of SJP Formwork (NSW) Pty Ltd, a contractor on the site, was injured by a concrete pier which collapsed during the re-location of a rubbish bin by crane. The structure was one of two concrete block piers erected during the construction of a block of townhouses on the site at 10 -12 Ben Boyd Road, Neutral Bay. 4 The company principally involved in the construction of the townhouses on the building site was Allen Interests Pty Limited (Allen Interests). The respondent company was contracted by Allen Interests as the project manager and was responsible for the co-ordination of work and safety on the site. Other companies were contracted by Allen Interests to perform specific tasks, including Direct Constructions Pty Limited (Direct Constructions) which performed brick and block laying, and All Terrain Forklift Hire Pty Limited (All Terrain) which performed lifting tasks involved in the provision of flooring including the movement of the bin by crane at the time of the incident. 5 The breach alleged was set out in the Information and Summons in the following terms: On the said date, at the said site, the defendant failed to ensure that persons not in its employment, in particular Ivan Katic, were not exposed to risks to their health and safety arising from the conduct of its undertaking at its place of work in that it failed: a) To ensure that a concrete block wall and piers were adequately braced until such time as they were to be permanently supported, pursuant to Clause 77 of the Construction Safety Regulations 1950. b) To ensure that work sequencing on site did not place persons at risk, in particular, that a 23 tonne P & H mobile crane did not work in close proximity to an unsupported block wall. c) To provide such supervision as may be necessary to ensure the health and safety at work of persons not in its employment in relation to the construction. The decision under appeal 6 The evidence before her Worship indicated that the piers were initially constructed by Mr Ryan, a bricklayer subcontracted by Direct Constructions, who built both piers to a height of one metre above the wall. The piers were later extended a further 0.34 - 0.54 metres by another bricklayer on 19 or 21 July 1997. 7 The rubbish bin used for construction waste was located on the street. Mr Atkinson, the principal of All Terrain, decided to re-locate the bin to the construction site as he believed the company was not authorised to keep the bin on the street. Mr Atkinson then supervised the movement of the bin to ensure that the crane movements were contained and directed. 8 Mr Mark Watson, an employee of All Terrain, was stationed on the side of the bin closest to where the pier was located. In his statement describing the events, Mr Watson said that as he was steadying the bin he touched the wall behind him with his shoulders or back and felt the wall move. Her Worship found that the touching of the wall by Mr Watson occurred within the two metre height of the wall and pier. 9 Mr Grice, the principal of the respondent, gave evidence to the effect that he saw both piers at their completed height prior to the incident and ordinarily the construction should have been stable enough at that point to be self-supporting. After the incident, and on the same day, Mr Grice examined the other pier and was of the opinion that the mortar was dry and the structure was stable. 10 Her Worship found that the prosecution had not made out the first two particulars of the charge. The first particular concerned reg 77 of the Construction Safety Regulations 1950 which requires that a "wall" built to a height greater than 1.5 metres must be properly supported. Her Worship determined that reg 77 did not apply to the pier as the terms of the regulation specifically state that it is a "wall" which must be braced rather than a "pier". Her Worship considered that there was a distinction between "wall" and "pier" and therefore the regulation did not apply to the pier. 11 The second particular alleged the respondent's failure to ensure that work sequencing involving the use of the crane did not place any persons at risk. Her Worship considered the issue requiring determination was whether the use of the crane to move the bin placed any persons at risk. Her Worship accepted the respondent's submission that the use of a crane close to an unsupported pier was not sufficient to make out this allegation, as the evidence revealed that the movement of the crane was "suitably contained and supervised" and, further, rather than showing that "such touching was inevitable or likely by the use of the crane" the evidence revealed that the wall collapsed when touched by Mr Watson. Her Worship thereby concluded that it was the possibility of a worker touching the pier rather than the use of the crane which gave rise to the real possibility of the risk. 12 The third particular alleged that the respondent failed to provide necessary supervision to ensure health and safety on site. Her Worship found this particular had been made out as the respondent failed to provide supervision to its contractors and "therefore failed to avoid the real risk posed by the pier to a person not in its employment." In reaching this conclusion, her Worship accepted that supervision did not require the respondent's representative to be on site at all times. However, it did require supervision necessary to ensure health and safety of workers regardless of their status or situation as skilled independent contractors. 13 Her Worship also rejected the reliance by the respondent on the concept of novus actus interveniens , the respondent having submitted that it was not liable because it was not informed of the decision to re-locate the bin. This conclusion, however, must be seen in the context of her Worship's finding that the movement of the bin was not related to the collapse of the pier. Her Worship noted that had she been satisfied of the causal nexus between the crane movement and the detriment to safety she would consider the defendant liable "as the movement of the bin was necessary and therefore, at least, reasonably foreseeable by the defendant." 14 It is important, particularly in light of our consideration of the application by her Worship of s 53 of the Occupational Health and Safety Act , to set out the following part of her Worship's reasoning on the issue of supervision: However, the want of supervision alleged by the prosecution goes further than a lack of oversight of movement of the bin. The prosecution also relies on a failure of supervision in that the defendant, in its role as site supervisor, had control of the safety of the site. The evidence shows that the pier in its condition on the date of the incident was a structure which would topple if it were touched. As such it posed a real risk to any person near it. It was not supported in any way to prevent it being touched. The defendant's control included the power to ensure that the bricklayers supported the pier (see evidence of Mr. Grice) and to isolate the area of the pier. The defendant did neither. 15 Her Worship then dealt with the s 53 defence and said that it was clear on the evidence had the respondent known of the risk it could have avoided it "with relative ease". Knowing about the risk was not a question of whether the respondent did envisage a particular danger but whether it should have. Her Worship's reasoning and conclusions on this issue were in these terms: To rely on this defence the defendant has the onus to prove to the civil standard that either of the subsections are established. It is clear from the evidence of Mr Grice that, had it known of the risk, the defendant with relative ease could have taken measures to avoid the risk to Mr Katic and others. I accept the prosecution submission that, if the defendant is able to demonstrate that the circumstances or causes of the detriment or risk to safety constituting the offence were not reasonably foreseeable, it will generally have thereby established that is was not practicable to take measures to guard against the risks. It is not a question of whether the employer did envisage a particular danger but rather whether it should have: WorkCover Authority of New South Wales v Kellogg (Aust) Pty Limited , unreported, 16 October 1999 Walton VP at 39-40 [now reported as WorkCover Authority of New South Wales v Kellogg (Aust) Pty Limited (No 1) (1999) 101 IR 239]. The evidence of Mr Grice is that he was aware of the pier prior to its collapse and considered it was safe. So did the bricklayer and Mr. Atkinson who assessed the area before he moved the bin. Mr. Grice's assessment is given weight by the condition of the second pier on the day of the incident. Its mortar was dry and it was structurally stable. Despite the unchallenged statement of the eyewitness, Mr Grice in his evidence expressed strong doubts that the touching of the pier by Mark Watson caused the collapse. I am satisfied that the defendant did not envisage that danger. Nor can it in my view be said that, without the wisdom of hindsight, he should have envisaged the danger. He has extensive experience in the building industry and was on a daily basis engaged in inspection of the safety of the site. His assessment of the safety of the pier was supported by the bricklayer and by the observations of Mr Atkinson and by the condition of the second pier which was built on the same day as by the first by the same bricklayer. The prosecution argues that, when regard is had to the standard prescribed by the regulation, the defendant should have realised that the unsupported pier posed a hazard. However those standards do not, in my view, apply to the pier here in question. I am satisfied that the defendant has demonstrated that the causes of the detriment to safety were not reasonably foreseeable. In these circumstances, the defendant has demonstrated that it was not practicable to take measures to guard against the risk. 16 Her Worship's decision to dismiss the charge appears to be based on an acceptance that if a defendant is able to demonstrate the risk was not reasonably foreseeable then it will generally be established that it was not practicable to take measures to guard against the risks. 17 The appellant now seeks orders to quash the decision of her Worship and for the Full Bench to deal with the matter by proceeding to a conviction of the respondent. The legislation 18 As earlier noted, the prosecution was brought pursuant to s 16(1) of the Occupational Health and Safety Act which provides: 16. Employers and self-employed persons to ensure health and safety of persons other than employees at places of work (1) Every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 19 Section 53 of the statute, which provides defences to proceedings for an offence against it, is in these terms: 53. Defence It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that: (a) it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence, or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision. 20 The provision of the Industrial Relations Act which gives the statutory basis for the present appeal and also the procedure to be adopted in a prosecution appeal against acquittal is s 197A which relevantly states: 197A. Appeals against acquittals in proceedings for offences against occupational health and safety legislation (1) This section applies to the decision of a member of the Commission or of a Local Court constituted by an Industrial or other Magistrate to acquit a person of an offence against the occupational health and safety legislation. (2) This section applies to such a decision only if proceedings for the offence were instituted by an inspector appointed under that legislation or with the consent of the Minister or other officer authorised by that legislation to give such a consent. (3) An appeal lies to the Full Bench of the Commission in Court Session against a decision to which this section applies. The appeal is not limited to a question of law. … (6) Section 191 applies to an appeal under this section. (7) On an appeal under this section, the Full Bench may: (a) dismiss the appeal, or (b) set aside the decision appealed against and make a decision in the matter in accordance with law (including the conviction and sentence of the defendant for the offence charged). (8) If the Full Bench on appeal convicts the defendant of the offence, the maximum penalty that the Full Bench may impose for the offence is the maximum penalty that the court that acquitted the defendant could have imposed for the offence. (9) This section has effect despite anything to the contrary in section 196 or 197. (10) In this section: "occupational health and safety legislation" means the Occupational Health and Safety Act 2000 , the regulations under that Act and the associated occupational health and safety legislation within the meaning of that Act. …

21 Sections 188 and 191 of the Industrial Relations Act are also relevant. Section 188 is contained within Pt 7 of Ch 4 of that statute and provides: 188. Appeals to Full Bench by leave only (1) An appeal to a Full Bench of the Commission under this Part may be made only with the leave of the Full Bench. (2) The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. (3) The Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal. (4) This section does not apply to an appeal made by the Minister. 22 Section 191 of the Industrial Relations Act expressly applies to an appeal by the prosecution by virtue of s 197A(6). Section 191 is in these terms: 191. Nature of appeal (1) An appeal to a Full Bench of the Commission under this Part is not by way of a new hearing and is to be determined on the evidence and material adduced in relation to the decision appealed against. (2) However, the Full Bench may, by leave, receive further evidence if it considers that special grounds exist or if the evidence concerns matters occurring after the decision appealed against. (3) To avoid doubt, the Full Bench cannot merely substitute its decision on the matter, but must follow the principles applying to appeals from discretionary decisions, whether or not further evidence is received. Grounds of appeal 23 The grounds of appeal fall into two categories: first, those relating to her Worship's findings and the particulars alleged by the prosecution; and, second, those relating to her Worship's application of the defences under s 53. In the first category, the grounds may be described as follows: (a) her Worship erred in finding that the concrete structure was not a "wall" within the meaning of reg 77 of the Construction Safety Regulations 1950 and therefore was not required to be braced; (b) her Worship erred in finding that the use of the crane in close proximity to the pier was not sufficient to make out the second particular; and (c) her Worship erred in finding that there was no causal nexus between the movement of the bin and the risk to safety in order to make out the third particular. 24 As to the s 53 defences, the appellant submits that: (a) her Worship erred in applying the provisions of s 53 of the Occupational Health and Safety Act by finding that the detriment or risk to safety constituted by the condition of the concrete structure in question was not reasonably foreseeable and thereby it was not practicable to take measures to guard against the risk it presented; (b) her Worship erred in finding that reg 77 of the Construction Safety Regulations 1950 had no bearing in applying the provision of s 53 of the Occupational Health and Safety Act ; and (c) her Worship erred in failing to give adequate weight to the evidence as to the condition of the concrete structure in question and the risk it thereby presented to those near it. Submissions as to whether leave to appeal is required 25 Mr B G Docking of counsel, for the appellant, submitted that leave was not required for an appeal pursuant to s 197A. However, counsel conceded that the Full Bench decision in Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432, which held that leave was required for appeals under s 197 of the Industrial Relations Act, might lead to the conclusion that s 197A appeals would also require leave. It was accepted that, to hold otherwise would result, for example, in a defence appeal against conviction or sentence pursuant to s 197 requiring leave whereas a prosecution appeal pursuant to s 197A would not. 26 In support of the construction that s 197A did not require leave to appeal, counsel pointed to the express terms of s 197A(6) which provide for the application of s 191 to an appeal pursuant to s 197A, and the absence of a provision expressly stating that s 188 applies. It was submitted that the omission could be seen as indicating that leave is not required. 27 Mr P E Blacket SC and Mr M P Cahill of counsel appeared for the respondent and submitted that appeals pursuant to s 197A required leave. This conclusion was said to follow from the construction of the provision and also as a matter of policy. 28 Senior counsel submitted that the policy basis derives from the view the courts and the common law have taken of prosecutorial appeals and the element of double jeopardy involved in them. Prosecution appeals against acquittals in criminal matters have, as a matter of history, either not existed or have been significantly circumscribed. Until very recently there was no right of appeal from an acquittal in this jurisdiction. That approach rested on the common law view that an appeal against acquittal effectively placed an accused in jeopardy more than once. The respondent submitted that such a consideration must have "powerful force" when considering the issue of leave. Further, it would be anomalous if s 197 required leave for a convicted person to appeal and s 197A did not require leave for a prosecution appeal. A prosecutor would thus be placed in a more advantageous position than a convicted defendant. That outcome would be most undesirable, particularly given the prosecutor's pecuniary interest in the possibility of being granted a moiety. 29 It was further submitted that by enacting a legislative provision allowing a prosecution appeal against an acquittal, Parliament has altered a very important legal principle by removing the protection against double jeopardy. Section 188 should thus, it was submitted, be considered as an important element of the statutory scheme and an appeal against acquittal should be construed as only available with the leave of the Full Bench. 30 Mr Blacket also submitted that the express reference to s 191 in s 197A(6) should not, when properly considered, be seen as detracting from the requirement to obtain leave pursuant to s 188. Although the statutory scheme may be somewhat less than clear, Parliament should not be presumed to have intended that an appeal as of right from a magistrate would lie to a superior court for a rehearing on the facts. The reference in s 197A to s 191 is thus to be seen as governing the procedural aspects of the appeal in the context of a legislative acceptance that s 188, which plainly requires leave, would also apply to s 197 appeals without the need for an express reference to it in the section. That practical conclusion, it was submitted, is consistent with the analysis by the Full Bench in Drake Personnel . Submissions as to whether leave should be granted if required 31 The appellant submits that leave, if required, should be granted as the appeal raises important questions of statutory construction regarding s 16 and s 53 of the Occupational Health and Safety Act , reg 77 of the Construction Safety Regulations and s 197A of the Industrial Relations Act . The appeal therefore raises matters of substantial public importance in relation to the enforcement and operation of legislation designed to protect the safety and welfare of persons in the workplace. 32 The respondent opposes leave being granted on the basis that her Worship did not commit appellable error. Further, the fact that this is an appeal against acquittal means that leave should only be granted when wider and more significant questions are involved than the correctness of the original verdict: see per Deane J in Thompson v Mastertouch TV Service Pty Ltd (1978) 19 ALR 547 at 550. The provision for a prosecution appeal against an acquittal is exceptional and should only be available when something more than factual error is relied on or established. 33 The respondent also submitted that, consistent with the exceptional nature of such an appeal and the limitations imposed on the appeal by s 191, the grounds relied on by the appellant were not sufficient to warrant the grant of leave. There was no question of principle which would justify leave and there was no need to clarify the interpretation of authorities on s 16 or s 53. In any event, the proceedings did not provide an appropriate vehicle for such consideration having regard to the factual matrix. Submissions on the substance of the appeal 34 The focus of the submissions on the substantive issue was the construction and application of s 53 of the Occupational Health and Safety Act . This no doubt reflected the consideration that this issue would, subject to the question of leave, determine whether there had been appellable error. 35 The appellant submits there was some doubt as to which limb of s 53 her Worship relied on in holding that the respondent had made out a defence to the charge. It was contended that her Worship applied only the s 53(a) defence; if her Worship relied on the defence in s 53(b) then there would have been reference in the decision to it but there was not. The respondent conceded, correctly in our view, that her Worship did not rely on s 53(b) so that it was accordingly not relevant to the appeal. 36 Mr Docking submitted that her Worship erred in principle in the construction and application of s 53 because her Worship, in substance, misdirected herself by incorrectly applying the judgment of Walton J, Vice-President in WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Limited (No 1) (1999) 101 IR 239. It was submitted that her Worship approached the test as to the application of s 53(a) incorrectly by considering reasonable foreseeability as the only criterion for assessing reasonable practicability and, therefore, failed to consider and assess what was reasonably practicable. 37 Counsel submitted it was held in Kellogg (No 1) that if a defendant is able to demonstrate that the circumstances or causes of the detriment or risk to safety constituting the offence were not reasonably foreseeable it will generally have thereby established that it was not practicable to take measures to guard against the risks. It is not a question of whether the employer did envisage a particular danger, but rather whether it should have. Her Worship erred in principle in the construction and application of s 53 of the Occupational Health and Safety Act , as is apparent on the face of the decision, because her Worship approached the matter on the basis of whether the respondent did envisage a particular danger, rather than determining whether it should have. The test of foreseeability is not whether a lawyer or engineer could reasonably have foreseen the risk which existed but whether or not the ordinary juryperson or reasonable observer could have done so. The standard of foreseeability is objective but it is not necessary that the precise causal circumstances of exposure to the risk and the consequent accident were reasonably foreseeable: Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 and WorkCover Authority of NSW (Insp Kelsey) v The University of Sydney (unreported, Hill J, 2 April 1997). The risk of a wall and/or piers collapsing was not an unknown situation as the possibility was known, foreseeable and obvious. 38 The erroneous approach, it was submitted, is clear from the magistrate's findings, that "[t]he evidence shows that the pier in its condition on the date of the incident was a structure which would topple if it were touched. As such it posed a real risk to any person near it. It was not supported in any way to prevent its collapse if touched"

and, furthermore, where it was also found to be a real possibility of any worker touching the pier which gave rise to a risk. A "real possibility" or a "real risk" cannot realistically be said not to be reasonably foreseeable: see Kellogg (No 1) and Drake Personnel. 39 It was contended that the terms of s 15, and so also those of s 16, impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or where experience indicates that a risk to safety has arisen and requires remedy: Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209. Both sections limit considerably the ability to rely upon previous experience as to either liability or culpability: Nelmac at 210. The Act also requires a pro-active approach and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace: Nelmac citing Hill J in WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. 40 It was further submitted that there was a misunderstanding or wrong assessment of some salient features of the evidence in the decision under appeal. Her Worship erred in failing to give adequate weight to the evidence as to the condition of the concrete structure in question and the risk it thereby presented to those near it. In finding that the respondent demonstrated it was not practicable to take measures to guard against the risk because the defendant did not and should not have envisaged the particular danger, her Worship relied upon the following:

(a) The evidence of Mr Grice that he considered the pier was safe where he had extensive experience in the building industry and was on a daily basis engaged in inspection of the safety of the site.

(b) Mr Atkinson also assessed the pier was safe before he moved the bin.

(c) Mr Ryan, the bricklayer, also considered the pier was safe.

(d) The assessment of Mr Grice was given weight by the condition of the second pier on the day of the incident, namely, its mortar was dry and it was structurally stable.

It was also submitted that her Worship, at least in part, misunderstood or made a wrong assessment of some salient features of the evidence, including the following:

(a) Mr Grice was not even in attendance on the day of the collapse to make any safety assessment until after the risk had manifested in the occurrence.

(b) Mr Ryan, the bricklayer who was reasoned by her Worship to have also considered the pier was safe, last worked on the two concrete block piers on Friday 18 July 1997. At that time the piers, including the wall, were about 2 metres high and not at the height of about 2.34 metres of pier plus about one metre of wall as they were when the injuries to Mr Katic took place on Tuesday 22 July 1997.

(c) It was admitted by Mr Grice that wind loading is the purpose of bracing the wall.

(d) It was also accepted by Mr Grice in evidence that cranes can get out of control - "Do you … to any extent take into account the risk that a crane load might get out of control?---Yes we do, that's why nobody is allowed to work underneath the crane, the slewing area of the crane". 41 The appellant submitted that her Worship made two other findings showing appellable error. First, the finding that "[i]t is clear from the evidence of Mr Grice that, had it known of the risk, the defendant with relative ease could have taken measures to avoid the risk to Mr Katic and others." Her Worship thereby accepted that Mr Grice clearly admitted in cross-examination measures could have avoided the risk to Mr Katic. This shows material error in respect of the application of the construction and application of s 53(a) as the assessment which the established principles establish as required by the expression "reasonably practicable" in s 53(a) was not undertaken. 42 The appellant contended at first instance that the fact it was possible to take some measures is not the test. In Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 470 reference was made with approval to Edwards v National Coal Board [1949] 1 KB 704 where it was held that "reasonably practicable" implies that a computation must be made by the owner, in which the quantum of the risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risks (whether in money, time or trouble) is placed on the other. If it be shown that there is a gross disproportion between them, the risk being insignificant in relation to the sacrifice, the defendant discharges the onus. It was found in Carrington Slipways at 471 that the employer failed to show it was not "really practicable" to stop people like the injured worker there from walking on the pipes or "to make some other provision to ensure safety". In short, the greater the magnitude of the risk and the greater the gravity of the harm, should the event occur, the higher is the duty to take precautions, even if they are expensive or difficult to adopt. 43 The appellant submitted at first instance that the risk of injury from the structure collapsing on a person during construction when compared with the above simple and available measures meant that the s 53 defences could not be made out by the respondent. In other words, adopting the reasoning in Kellogg (No 1) , the magnitude of the risk was not so small that it could be ignored; it may be properly characterised as real or substantial. The gravity of the harm which could have resulted should the event occur was extreme: loss of life was a real and substantial possibility should a structure collapse on an individual. There is no evidence that the minimum precautions which were identified by Mr Grice were prohibitively difficult or expensive. Nor was there evidence that the provision of adequate supervision would create such problems. 44 The second finding by her Worship which also evinced appellable error was where her Worship rejected that the standard prescribed by the Construction Safety Regulations meant that the respondent should have realised that the unsupported pier posed a hazard. In particular, her Worship erred in finding that reg 77 of the Construction Safety Regulations was not relevant when considering the defences under s 53 of the Occupational Health and Safety Act . Her Worship found that the first particular was not made out because the structure which collapsed was a pier, not a wall, and there was thus no breach of reg 77. As to this particular, her Worship accordingly held there was no requirement for the pier to be braced or supported as the regulation requires. 45 Thus, it was submitted, the appellant had made out beyond reasonable doubt that:

(a) a potential risk to the health, safety or welfare of either Mr Pavic or Mr Katic, or both, from being hit by the structure being constructed under the management of the respondent;

(b) the actual injuries suffered by Mr Katic as a result of being hit by the structure "will certainly represent relevant evidence of the existence of a risk to the health and safety of non-employees and the seriousness of that risk";

(c) the failures by the respondent in particular (b) were either the crane being allowed to be so close (including where its operation involved Mr Watson supporting the bin as it was lowered) or the pier being unsupported, or both; and

(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.

We adopt this approach as appropriate to the present issue in the construction of s 197A. 61 A significant consideration relevant to the Full Bench's decision in Drake Personnel was the absence of specific terms excluding the operation of the general provisions of Pt 7 of Ch 4 in appeals under s 197. This factor was considered of particular importance, given that s 196(1) explicitly provides that in an appeal pursuant to s 196 "the other provisions of [Part 7] do not apply." The Full Bench held (at 447): The language of s197 in the context of Part 7 of Chapter 4 of the Act does not disclose an intention to exclude that section from the operation of the other provisions of that Part, particularly ss188 and 191. It was noted in the course of the hearing that four major provisions (ss187, 194, 196 and 197) within Part 7 provide avenues of appeal from different kinds of decisions of the Commission, the Commission in Court Session and other bodies. With the exception of s196, each provision does not specify the basis upon which the appeal is to be brought. The provisions provide variously that "[t]he following may appeal …", "[a] person may appeal …" and "[a]n appeal lies …". Only s196 expressly excludes appeals brought under that section from the remaining provisions of Part 7 by providing that "[t]his section applies (and the other provisions of this Part do not apply)". The absence of a similar exception expressed in s197 is a significant factor pointing to the conclusion that the legislature intended appeals under s197 would be subject to the general provisions in Part 7. 62 We consider that this approach should also be adopted in respect of appeals under s 197A. Section 197A, as do s 196 and s 197, provides an avenue of appeal in respect of occupational health and safety prosecutions, although the two last-mentioned sections also provide appeal rights in a broader range of proceedings. Section 197A, like s 197, is to be contrasted with s 196 which, although all three provisions are found in Pt 7 of Ch 4, expressly excludes the operation of ss 188 and 191. Although the terms of s 197A(6) specifically refer to and apply s 191 but do not likewise specifically refer to or apply s 188, we do not consider on balance that that, of itself, results in a different situation as between ss 197 and 197A as to leave. Therefore, prima face , appeals under s 197A are governed by the ordinary or general provisions as to appeals under Pt 7 of Ch 4, other than s 196, including the requirement in s 188 as to leave. 63 If the leave requirement in s 188 were not to apply to appeals pursuant to s 197A it would have been open to the legislature to expressly exclude its operation as has occurred in s 197A(9) which specifically provides the "section has effect despite anything to the contrary in section 196 or 197". 64 The conclusion that an appeal under s 197A requires leave is not only consistent with, and supported by, the plain words used in s 188 but also, we think, by the very important consideration that an appeal against an acquittal is exceptional in criminal jurisprudence. 65 The need for such an appeal provision and the requirement that such provisions must, for their effectiveness, be expressed unambiguously as they alter the common law, was considered by the Court of Appeal in CI & D Manufacturing Pty Limited v Registrar, Industrial Court of New South Wales (1996) 40 NSWLR 1. The Court there held that s 297(2)(d) of the then Industrial Relations Act 1991 did not confer a right of appeal from an acquittal in occupational health and safety proceedings since, for that right to exist, it would be necessary that the relevant statutory provision "clearly and unambiguously" provide for a prosecution appeal as it would mean the abrogation of a fundamental principle of common law: see, for example, per Clarke JA at 7. The s 53 defence 66 Her Worship's key findings on the s 53 defence may be summarised as follows: (a) if the respondent had known of the risk it could, "with relative ease", have taken measures to avoid the risk; (b) however, the respondent did not know of the risk and the risk was not one which it should reasonably have foreseen; and (c) it was not, therefore, practicable for the respondent to take measures to guard against the risk and the defence was accordingly made out. 67 The requirements for a successful s 53 defence were set out in Kellogg (No 1) as follows (at 259): To establish a defence under s 53, the defendant must prove, to a civil standard, either that it was not reasonably practicable to comply with the Act or that the commission of the offence was due to causes over which the defendant had no control and against the happening of which it was impracticable to make provision: see Drake at 48-49; Sydney City Council v Coulson (1987) 21 IR 477 at 480; and Italo Australian Construction Pty Limited v Parkes (1988) 24 IR 428 at 431. So much was accepted by the defendant in this case. 68 It is accepted in the present matter that the relevant limb of s 53 is s 53(a) which requires the defendant to prove that it was not reasonably practicable to comply with the relevant statutory obligation. The respondent submits that this issue should be approached in terms of whether the risk was reasonably foreseeable. Reasonable foreseeability of a risk or detriment to safety is relevant to the extent that it assists in determining whether it was reasonably practicable to avoid the risk. In Kellogg (No 1) the question of reasonable foreseeability was considered in this way (at 259): It is here that the question of reasonable foresight has relevance. If a defendant is able to demonstrate that the circumstances or causes of the detriment to safety constituting the offence were not reasonably foreseeable, it will generally have thereby established that it was not practicable to take measures to guard against that risk: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 363-364. In WorkCover Authority of NSW (Insp. Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381, for example, Hill J commented in relation to s53: "If the happening of an event is not reasonably foreseeable it is not practicable to make provision against it. When considering the matter of foreseeability, one should be careful not to substitute reasonable hindsight for reasonable foresight." 69 The test, however, is specifically whether it was not reasonably practicable to comply with the Act. That test is to be applied in light of the legislation which reflects the "increasing concern with safety in the working community" ( Shannon v Comalco Aluminium at 364). In Kellogg (No 1) , following detailed consideration of the appropriate approach to the application of the defence, it was said (at 260): In relation to the reasonable practicability of taking measures to remedy the potential threat to the safety of the defendant's employees, I consider that the formula identified in negligence cases such as Paris v Stephney Borough Council [1951] AC 367 at 375-376 is relevant. In short, the issue to be addressed may be expressed as follows: the greater the magnitude of the risk and the greater the gravity of the harm, should the event occur, the higher is the duty to take precautions, even if these are expensive or difficult to adopt. A similar approach was adopted by Asquith LJ in Edwards v National Coal Board [1949] 1 KB 704 at 712: The onus was on the defendants to establish that it was not reasonably practicable in this case for them to have prevented a breach of s49. The construction placed by Lord Atkin on the words "reasonably practicable" in Coltness Iron Co. v. Sharpe [1938] AC 90 at 94 seems to me, with respect, right. "Reasonably practicable" is a narrower term than "physically possible" and seems to me to imply that a computation must be made by the owner, in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed on the other; and that if it be shown that there is a gross disproportion between them - the risk being insignificant in relation to the sacrifice - the defendants discharge the onus on them. This passage was cited with approval by Watson J in Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467 at 470 and by Miller CIM in McVernon v Royce Roofing Pty Limited (1988) 25 IR 383 at 385. 70 The above observation by Asquith LJ in Edwards v National Coal Board emphasises the obligation in an appropriate case of the defendant employer adducing evidence to discharge its onus and how that issue may be approached. His Lordship observed at 712 - 713: So far, I am inclined to agree with the leaned judge. But, like my Lord, I do not think any or any sufficient evidence was adduced as to the relative quantum of risk and sacrifice involved, on the basis either that the mines as a whole, or this particular roadway, should be taken as the unit - a necessary prerequisite to any decision that the defendants have proved the necessary measures impracticable. For those reasons I think the appeal should be allowed. 71 Walton J, Vice-President recently dealt with the s 53(a) defence in WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182. After considering the decision of the High Court in Slivak v Lurgi (Aust) Pty Ltd (2001) 75 ALJR 481; 103 IR 52, his Honour held, at 206 - 207: [87] It is evident from these authorities that what is required by s 53(a) of the Act is a balancing of the nature, likelihood and gravity of the risk to safety occasioning the offence with the costs, difficulty and trouble necessary to avert the risk. At one end of the scale, it could not be reasonably practicable to take precautions against a danger which could not have been know to be in existence: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd (at 362). Similarly, if the happening of an event is not reasonably foreseeable then it will not generally be reasonably practicable to make provision against that event: see WorkCover Authority (NSW) (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381; WorkCover Authority (NSW) v Kellogg (Aust) Pty Ltd (at 259) and Austin Rover Ltd v Inspector of Factories (at 627) per Lord Goff and at 635 - 636 per Lord Jauncey of Tullichettle.

[88] At the other end of the scale, there will be cases, such as the present, in which known or obvious risks to safety exist. In these circumstances, the defendant will not have established a defence under s 53(a) of the Act where it was reasonably practicable to have complied with the Act by ensuring that persons were not exposed to those risks. This may be the case because no measures were reasonably available or because measures which were available were not reasonably practicable. As has been discussed, the assessment of the reasonable practicability of those steps requires a balancing of the quantum of the risk with the sacrifice (in money, time and trouble) in adopting the measures necessary to avert the risk. In my view, where there is a known risk which entails the potential for serious injury to persons in the workplace, the defendant will generally have to demonstrate that the costs, difficulty or trouble occasioned by the measures significantly outweigh the risk. This must be done by reference to the charge as brought by the prosecutor.

We consider the above comments by his Honour correctly state the position as to this defence. 72 We have concluded that the respondent has failed to discharge its onus on the s 53(a) issue, in that it has failed to adduce sufficient evidence, or to show that the steps required to avoid or overcome the risk to safety in the workplace outweighed those risks. Indeed, the evidence is to the opposite effect, and the respondent conceded that some rather simple steps could have been taken to avoid the collapse of the pier. Having reviewed the evidence, we accept the correctness of the general thrust of the appellant's submissions, as earlier summarised herein, against the availability to the respondent of the s 53 defence. 73 Reference should be made to the respondent's submission that the appellant had not introduced any evidence to establish that there was an obvious and foreseeable risk which the respondent should have considered required attention. However, a defendant bears the onus of showing that a defence under s 53 is available. The burden of proving the offence beyond reasonable doubt remains with the prosecution, but where provision is made for an exclusion or defence to such liability the defendant bears the burden, in an evidentiary sense, to adduce evidence capable of showing it is entitled to the benefit thereof. 74 We refer briefly to the issue whether a "wall" includes a "pier" for the purpose of reg 77 of the Construction Safety Regulations. Her Worship found that there was a distinction between a wall and a pier, seemingly on the basis that this was a matter of law. We disagree. The question whether the pier, or indeed any structure, is a wall for the purpose of the regulation is a question of fact to be decided upon the basis of the evidence. However, as we do not need to make a finding on that aspect, and having regard to the nature of the proceedings which are not essentially concerned with a prosecution for a breach as such of the regulation concerned, we are not inclined to reach a final view upon whether, in this instance, the pier could come within the definition of a wall for the purpose of the regulation. This may not, however, preclude either party from raising this matter at the sentencing phase should it be shown to be then relevant. 75 As the respondent has not challenged her Worship's finding that particular (c) was made out, and in view of our conclusion that her Worship was incorrect in applying s 53(a), we grant leave to appeal, uphold the appeal and find proven the subject offence for a breach of s 16(1) of the Occupational Health and Safety Act . We make orders accordingly. The matter is stood over to a date to be fixed for the finalisation of the appeal as to penalty and costs. _______________

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