Chugg v Pacific Dunlop Ltd

High Court of Australia|1990-07-01|Before: Gaudron JJ, Brennan J, Fullagar J

High Court of Australia Brennan, Deane, Dawson, Toohey and Gaudron JJ. Chugg v Pacific Dunlop Ltd [1990] HCA 41

ORDER Chugg v. Pacific Dunlop Ltd. Special leave to appeal revoked save as to the question of onus of proof. Appeal dismissed. Appellant to pay the respondent's costs. Pacific Dunlop Ltd. v. Chugg. Special leave to appeal revoked. Appeal struck out. Appellant to pay the respondent's costs.

Although I am in general agreement with the judgment of Dawson, Toohey and Gaudron JJ., I would identify the two considerations which seem to me to dictate the construction which their Honours place on s. 21(1) of the Occupational Health and Safety Act 1985 Vict. ("the Act"). First, the words "so far as is practicable" modify the verbs "provide and maintain" which create the obligation. As a matter of grammar the obligation imposed by s. 21(1) is not an absolute obligation. Secondly, as a matter of substance the elements of the supposed qualification relate to elements of the same character as the elements of the obligation, namely, the taking of precautions required to make a working environment safe and without risks to health. The words "so far as is practicable" prescribe the measure of the precautions to be taken; they do not prescribe a qualification of a character different from the character of the elements of the obligation: see per Fullagar J. in Barritt v. Baker [1] .

If the result of the informant's appeal depended on the construction of sub-s. (1) of s. 21, these considerations would lead to a dismissal of the appeal. Reference to the informations, however, shows that the informant relied on par. (a) of s. 21(2) to establish a contravention of s. 21(1) and alleged facts which were intended to satisfy that paragraph. Although sub-s. (1) is the sub-section which creates the obligation and, in conjunction with s. 47(1), creates the relevant offence, sub-s. (2) prescribes a series of duties a failure to fulfil any one of which amounts, by force of that sub-section, to a contravention of sub-s. (1). Therefore the only issues for determination on the hearing of the informations were whether the defendant had failed, in the respects alleged, "to provide and maintain plant and systems of work that are so far as is practicable safe and without risks to health". The words "so far as is practicable" in par. (a) of sub-s. (2) are an integral part of the clause which qualifies "plant and systems of work". To treat those words in that clause as words of exception would be to place a forced and unnatural construction on the clause. In the courts below, attention was focused on the modifying phrase in sub-s. (1) rather than on the corresponding words in sub-s. (2)(a). Although, in my view, that approach misconceived the true issue for determination, it led to no error in the result. I would therefore dismiss the appeal.

I do not rest this conclusion on the consideration that the Act provides only a criminal sanction for a contravention of s. 21(1). When, on its true construction, a statute confers on an individual a right to damages for breach of a statutory duty, the measure of the duty does not change with the character of the proceedings taken to enforce it. If, on a prosecution, proof which excludes a qualification of a duty is necessary to establish the offence, then, in a civil claim, proof which does not exclude the qualification fails to prove a breach of the duty. And if that breach of the duty be not proved, the common law remedy of damages is not available: Nimmo v. Alexander Cowan & Sons Ltd. [2] ; Reg. v. Hunt [3] . The principle is stated in the majority judgment in Waugh v. Kippen [4] :

the process of construction must yield for all purposes a definitive statement of the incidence of an obligation imposed on the employer. The legislature cannot speak with a forked tongue. Although the standard of proof applicable to criminal proceedings for a breach of the obligation will differ from that applicable to civil proceedings and the law may provide specific defences by way of answer to a prosecution which have no relevance to civil proceedings (as in Sovar v. Henry Lane Pty. Ltd. [5] ), the elements that make up the obligation will be the same in each case. For example, in the present case one could not conclude in favour of an objective criterion of the likelihood of a risk of injury in the context of a criminal proceeding and a subjective criterion for the purposes of a civil action. 1. [1968] A.C. 107, at pp. 115, 134. 2. [1987] A.C. 352, at p. 383. 3. (1986) 160 C.L.R. 156, at p. 165. 4. (1967) 116 C.L.R. 397.

I agree with Dawson, Toohey and Gaudron JJ., for the reasons they give, that the special leave to appeal given to the defendant should be revoked.

The informant sought to appeal on a point which the majority of the Full Court thought it unnecessary to consider but on which Ormiston J. would have allowed the appeal to that Court. The point relates to the sufficiency of the prosecution's evidence to establish an element in the offence, either safety or practicability. However, it was conceded that, if the special leave to appeal given to the defendant were revoked, the informant's special leave to appeal should be limited to exclude the point relating to the sufficiency of evidence. As the defendant's special leave is revoked, the informant's special leave should be so limited.

I would therefore agree with the order proposed by Dawson, Toohey and Gaudron JJ.

I agree with the judgment of Dawson, Toohey and Gaudron JJ. I add some brief comments for myself.

Both as a matter of language and, more importantly, as a matter of substance, s. 21 of the Occupational Health and Safety Act 1985 Vict. ("the Act") is ambiguous about whether it was the legislative intent that the phrase "so far as is practicable" (in sub-ss. (1) and (2)(a)) should be read as constituting an element of a primary obligation or as representing a "qualification [accompanying] the description of the offence" (see Magistrates (Summary Proceedings) Act 1975 Vict., s. 168(1)). In my view, the fact that the section is concerned only with the criminal liability of an employer is of critical importance in the resolution of that ambiguity. The section does not control or affect the employer's civil liability to an injured worker. If it did, the considerations favouring construing the words "so far as is practicable" as constituting a qualification in relation to which the employer bears the onus of proof would, in my view, have prevailed at least in relation to the civil liability of the employer to such an employee (see, e.g., Kingshott v. Goodyear Tyre & Rubber Co. Australia Ltd. [No. 2] [6] ).

(1987) 8 N.S.W.L.R. 707, at pp. 714-716, 722-723, but cf. at pp. 727ff.

Those considerations are, however, either unpersuasive or displaced by countervailing considerations in so far as the construction of s. 21, which is an exclusively penal provision, is concerned. For one thing, the informant in a prosecution under s. 21 must be the responsible Minister or an inspector. Such an informant would have the resources of government available to him and would not be expected to be in a position of disadvantage, vis-a-vis the employer, as regards what was and was not practicable in terms of maintaining a safe working environment. Indeed, the responsible Minister or an inspector may well have more general information and more ready access to expert advice than an accused employer. It is true that an injured industrial worker in this country is likely to enjoy the support of a trade union. Not all such workers are members of a union however, and it cannot be assumed that the Legislature has proceeded on the mistaken basis that every injured worker will enjoy union support. For another thing, the considerations which support a benevolent construction of a provision conferring rights of compensation upon an employee (see, e.g., Rice v. Henley [7] ; Wilson v. Wilson's Tile Works Pty. Ltd. [8] ) are not present in the case of a provision which is concerned only with the imposition of criminal liability and which accordingly must be strictly construed (see, e.g., R. v. Adams [9] ; Deming No. 456 Pty. Ltd. v. Brisbane Unit Development Corporation Pty. Ltd. [10] ).

(1914) 19 C.L.R. 19, at p. 22. 2. (1960) 104 C.L.R. 328, at p. 335. 3. (1935) 53 C.L.R. 563, at pp. 567-568. 4. (1983) 155 C.L.R. 129, at p. 145.

There is one further matter which I would mention. It is that I am unable to see any acceptable basis in principle for an immutable or overriding general rule of statutory construction precluding the discernment or imputation, in an appropriate context, of a legislative intent that a provision such as s. 21(1) or s. 21(2)(a) should, if it is made to perform the dual function of imposing criminal liability upon an employer and conferring compensatory rights upon an injured employee, be construed distributively with the result that, in a case of ambiguity, what is properly seen as an element of the offence for the purposes of a criminal prosecution of an employer may be seen as a qualification or exception for the purposes of civil proceedings by an injured employee. In view of the weight of authority favouring such an immutable or overriding general rule however (see, in particular, the extract from the majority judgment in Waugh v. Kippen [11] , set out in the judgment of Brennan J.), it would seem desirable that there be prompt legislative action, in places where such provisions are made to perform that dual function, to clarify whether it was in fact the legislative intent that the onus of proving what was or was not practicable in an employer's business should be cast upon an injured employee.

(1986) 160 C.L.R. 156, at p. 165. Dawson, Toohey and Gaudron JJ.

These appeals were heard together. They arise out of the prosecution of Pacific Dunlop Ltd. ("the defendant") on six charges under the Occupational Health and Safety Act 1985 Vict. ("the Act") and one charge under the Occupational Health and Safety (Machinery) Regulations 1985 (Vict.) ("the Regulations"). The charges were brought on the information of Peter Richard Chugg ("the informant").

The charges were heard in the Magistrates' Court at Broadmeadows. The charges laid under the Act were dismissed, but the defendant was convicted on the charge brought under the Regulations. The informant and the defendant each obtained orders nisi to review the magistrate's decisions. The orders nisi obtained by the informant were limited to a consideration of two of the charges laid under the Act. The orders nisi were returned before the Full Court of the Supreme Court of Victoria. By majority (Kaye and Beach JJ., Ormiston J. dissenting), the orders nisi obtained by the informant and the defendant were discharged. Each now appeals to this Court.

The defendant is the occupier of a factory at Footscray in which there was, on 2 November 1985, a machine known as a Banbury Mill. The machine had a hopper intake door and a discharge door. Electrical modifications had been made to the machine with a view to ensuring that the hopper door would automatically close and remain closed when the discharge door was open. When the machine was being used for production, a conveyor belt limited, but did not completely bar, access to the hopper door. On 2 November 1985 the machine was not being used for production and the conveyor belt had been pushed aside, leaving the hopper door unguarded. On that day a fourth year apprentice, Robert Mark Everest, was employed to modify the machine's pneumatic system so as to override the electrical modifications and allow the hopper door to be manually operated. This work was to be effected at or on a control panel near the machine. It did not require work at, in, or upon the machine itself. Mr. Everest apparently had occasion to go to the machine for he was fatally injured when the hopper door closed, trapping the upper part of his body inside.

The charges which are the subject of the informant's appeal were:

that being an employer [the defendant] did fail to provide and maintain as far as was practicable for employees a working environment that was safe and without risks to health when it did fail to provide and maintain plant and systems of work that were so far as was practicable safe and without risks to health in contravention of the provisions of s. 21(1) and 21(2)(a) of [the Act], in that one Robert Mark Everest, an employee, was able to gain access to the trapping space created by the power driven hopper door and frame of a Banbury mill on which he was carrying out maintenance in accordance with his duties.

that being an employer [the defendant] did fail to provide and maintain as far as was practicable for employees a working environment that was safe and without risks to health when it did fail to provide and maintain plant and systems of work that were so far as was practicable safe and without risks to health in contravention of the provisions of s. 21(1) and 21(2)(a) of [the Act], in that no system of work was in place to ensure that the interaction of the electrical and hydraulic systems of activating a Banbury mill did not result in danger to employees.

Section 21(1) and (2)(a) of the Act are as follows:

(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 -

(a) to provide and maintain plant and systems of work that are so far as is practicable safe and without risks to health.

It was held in the Magistrates' Court that the issue of practicability, whether arising under s. 21(1) or under s. 21(2)(a) of the Act, was one upon which the informant bore the onus of proof. It was further held that none of the charges laid under the Act had been "proved" or "made out".

The primary issue raised by the informant's appeal is whether, in a prosecution under s. 21 of the Act, the informant or the defendant bears the onus of proof on the question of practicability. It was unanimously held by the Full Court that the onus is on the informant. The issue upon which Ormiston J. reached his dissenting decision, namely, the relevance of reasonable foreseeability to liability under s. 21 of the Act, will be dealt with later.

The Act is silent as to the onus of proof in relation to the offence created by s. 21. That is not unusual for the rule as to the onus of proof in a criminal proceeding is clear, namely, that "it is the duty of the prosecution to prove [a defendant's] guilt subject to the defence of insanity and subject also to any statutory exception": Woolmington v. Director of Public Prosecutions [12] . The question thus raised by the informant's appeal is whether the words "so far as is practicable", as used in s. 21(1) and (2) of the Act, constitute a statutory exception.

For the purpose of assigning the onus of proof, a distinction is made between a requirement which forms part of the statement of a general rule and a statement of some matter of answer, whether by way of exception, exemption, excuse, qualification, exculpation or otherwise (called an "exception"), which serves to take a person outside the operation of a general rule. See Vines v. Djordjevitch [13] . The distinction does not depend on the rules of formal logic: Dowling v. Bowie [14] . Rather, the categorization of a provision as part of the statement of a general rule or as a statement of exception reflects its meaning as ascertained by the process of statutory construction. Where some matter is said to be an exception to an offence, the question is whether there is to be discerned a legislative intention "to impose upon the accused the ultimate burden of bringing himself within it": Director of Public Prosecutions v. United Telecasters Sydney Ltd. [15] . The intention may be discerned from express words or by implication. See Reg. v. Edwards [16] and Reg. v. Hunt [17] .

(1955) 91 C.L.R. 512, at pp. 519-520. 2. (1952) 86 C.L.R. 136, at p. 147. 3. (1990) 168 C.L.R. 594, at pp. 599-601. 4. [1975] Q.B. 27. 5. [1987] A.C. 352.

To some extent the question whether there is a legislative intention to impose the onus of proof of some particular matter on a defendant is answered by provisions such as s. 168 of the Magistrates (Summary Proceedings) Act 1975 Vict. which provides:

(1) Any exception, exemption, proviso, excuse, or qualification, whether it does or does not accompany the description of the offence in the Act, order, by-law, regulation, or other document creating the offence, may be proved by the defendant but need not be specified or negatived in the information.

(2) Whether an exception, exemption, proviso, excuse, or qualification is specified or negatived or not no proof in relation thereto shall be required on the part of the informant.

Section 168 of the Magistrates (Summary Proceedings) Act and like legislative provisions leave the question whether the matter in issue is an exception to be answered by the ordinary process of statutory construction. See the discussion of s. 14 of the Crimes Act 1914 Cth in Dowling v. Bowie [18] . And, despite the language of s. 168 and like legislative provisions, if a matter accompanies the description of an offence, then it will ordinarily be construed as an element of the offence which the prosecution must prove, unless there is something in the form of the language used or in the nature of the subject matter to suggest that it is an exception upon which the defendant bears the onus of proof.

Although the form of language may provide assistance, ultimately the question whether some particular matter is a matter of exception is to be determined "upon considerations of substance and not of form": Dowling v. Bowie [19] . And, of course, the necessity to have regard to substantive and not merely formal considerations is emphasized by the words of s. 168(1) of the Magistrates (Summary Proceedings) Act and like legislative provisions which make it clear that a matter may be classified as a statutory exception "whether it does or does not accompany the description of the offence".

One indication that a matter may be a matter of exception rather than part of the statement of a general rule is that it sets up some new or different matter from the subject matter of the rule. See Darling Island Stevedoring & Lighterage Co. Ltd. v. Jacobsen [20] , per Dixon J. Such is ordinarily the case where, in the terms used in Reg. v. Edwards [21] , there is a prohibition on the doing of an act "save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities". See Reg. v. Hunt [22] , where Lord Griffiths considered the statement from Reg. v. Edwards [23] "an excellent guide to construction". If the new matter is a matter peculiarly within the knowledge of the defendant, then that may provide a strong indication that it is a matter of exception upon which the defendant bears the onus of proof.

(1945) 70 C.L.R. 635, at p. 644. 2. [1975] Q.B., at p. 40. 3. [1987] A.C., at p. 375. 4. [1975] Q.B., at pp. 39-40.

The argument made on behalf of the informant relied heavily on certain matters pertaining to practicability being peculiarly within the knowledge of an employer. Section 4 of the Act defines "practicable" to mean:

(a) the severity of the hazard or risk in question;

(b) the state of knowledge about that hazard or risk and any ways of removing or mitigating that hazard or risk;

(d) the cost of removing or mitigating that hazard or risk.

It was put that matters bearing on cost and the suitability of ways of removing or mitigating a hazard or risk are matters upon which an employer may be expected to have knowledge not available to an informant. Similar considerations were taken into account in Nimmo v. Alexander Cowan & Sons Ltd. [24] where s. 29(1) of the Factories Act 1961 U.K. (a provision which is similar to s. 21(1) of the Act) was construed as requiring an employer to plead and prove that it was not reasonably practicable to keep its workplace safe. Like considerations were taken into account in Kingshott v. Goodyear Tyre & Rubber Co. Australia Ltd. [No. 2] [25] (a case in which special leave to appeal to this Court was refused) where s. 40(1) of the Factories, Shops and Industries Act 1962 N.S.W. was construed as requiring an employer to prove that it was not reasonably practicable to provide a safe means of access. See also Australian Oil Refining Pty. Ltd. v. Bourne [26] where Murphy J. placed the same construction on s. 40(1) of the Factories, Shops and Industries Act. Although Nimmo and Kingshott involved civil claims, the legislative provisions considered in those cases imposed both civil and criminal liability. See Nimmo [27] , per Lord Reid; Kingshott [28] , per Kirby P.; and [29] , per McHugh J.A. 1. [1968] A.C. 107. 2. (1987) 8 N.S.W.L.R. 707. 3. (1980) 54 A.L.J.R. 192; 28 A.L.R. 529. 4. [1968] A.C., at p. 115. 5. (1987) 8 N.S.W.L.R., at p. 713. 6. (1987) 8 N.S.W.L.R., at p. 727.

The significance of the argument made by reference to the knowledge of an employer may be seen from a passage in the speech of Lord Guest in Nimmo [30] , where his Lordship said:

I attach some importance to the consideration that the means of achieving the end were more likely to be within the knowledge of the defenders [employer] than the pursuer [employee]. In some cases it might be comparatively simple for the pursuer to make the necessary averments, but there will be many cases where, particularly in the case of a death of a workman, it would be unreasonable to expect a widow to have to specify what steps which the defender should have taken to make the working place safe were reasonably practicable. See also [31] , per Lord Pearson. 1. [1968] A.C., at p. 122. 2. [1968] A.C., at p. 132.

Section 21 of the Act differs from the provisions considered in Nimmo and in Kingshott in that Pt III of the Act (in which s. 21 is found) imposes criminal liability only and confers neither a civil cause of action nor a defence to a civil action: s. 28. Thus, to the extent that knowledge is a relevant consideration, the comparison is between the knowledge of an employer and that of an informant. By s. 48(1) of the Act, an informant is either the Minister of State responsible for the administration of the Act or an inspector appointed under Pt V of the Act.

It may reasonably be supposed that an employer will have superior knowledge of matters peculiar to his workplace, including the cost and suitability of the various suggested means of removing a hazard or risk. However, it may also be supposed that an inspector, upon whom s. 39 of the Act confers various powers "for the purpose of the execution of [the] Act [and] the regulations", will have superior, or at least wider, knowledge than an employer on some other matters which, in a good number of cases, will bear on the question of practicability. Thus, it may be supposed that an inspector would have wider knowledge as to the severity of, the state of knowledge about, and the availability of ways to remove or mitigate, hazards or risks which occur in industry generally, or occur in some general class of industrial undertaking or in relation to some general class of industrial machines, operations or pursuits.

One consideration tells against overmuch significance being given to the relative knowledge of an employer and an informant. The questions of safety and practicability, in many cases, raise issues of common sense rather than special knowledge. See Neill v. N.S.W. Fresh Food and Ice Pty. Ltd. [32] , per Taylor and Owen JJ. See also Australian Oil Refining Pty. Ltd. v. Bourne [33] . In some cases the mere identification of the cause of a perceptible risk may, as a matter of common sense, also constitute identification of a means of removing that risk, thereby giving rise to a strong inference that an employer failed to provide "so far as is practicable" a safe workplace. In other cases the same inference will arise from the identification of some method which would remove or mitigate a perceptible risk or hazard. And, in such cases, that inference might well be further strengthened by the failure of an employer to call evidence as to matters, such as cost and suitability, peculiarly within his knowledge. See Jones v. Dunkel [34] .

(1963) 108 C.L.R. 362, at p. 368. 2. (1980) 54 A.L.J.R., at pp. 193-194; 28 A.L.R., at pp. 532-533. 3. (1959) 101 C.L.R. 298.

A consideration of the relative knowledge of an employer and an informant does not, in our view, provide an indication that the defendant bears the onus of proof on the issue of practicability in a prosecution for an offence under s. 21 of the Act. In particular, the subject matter of practicability is not necessarily new or different from the subject matter of a rule requiring that a workplace be safe. So much is evident from par. (a) of the definition of "practicable", which looks to "the severity of the hazard or risk in question". And, although matters pertaining to cost and suitability of the means of avoiding a risk or hazard may be peculiarly within the knowledge of the defendant, the question of practicability does not depend on facts peculiarly within the knowledge of a defendant in the same way as does a question whether a proscribed act was done, in the terms used in Reg. v. Edwards, "in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities". That is because questions of cost and suitability are but aspects of the overall question of practicability. And they are aspects upon which, in a good many cases, the practical evidentiary burden will, in any event, fall on a defendant for, as earlier indicated, evidence as to the nature of the risk, the cause of the risk or means by which the risk may be avoided will often be all that is necessary to ground an inference that practicable means of avoiding the risk were not taken.

The informant's argument also relied on the object of the Act, namely, the promotion of occupational health and safety, and on the command in s. 35(a) of the Interpretation of Legislation Act 1984 Vict. that "a construction that would promote the purpose or object [of the Act] shall be preferred to a construction that would not promote that purpose or object". A similar consideration was taken into account in Nimmo. Lord Guest stated of the provision there under consideration [35] :

The object of the section was to provide for a safe working place by imposing criminal and civil liability on the occupier in the event of breach. There is doubt as to the construction of this section. The question appears to me to depend upon which construction will best achieve the result to be attained, namely, to make and keep the working place safe. 1. [1968] A.C., at p. 122.

The choice directed by s. 35(a) of the Interpretation of Legislation Act is not as to the construction which "will best achieve" the object of the Act. Rather, it is a limited choice between "a construction that would promote the purpose or object [of the Act]" and one "that would not promote that purpose or object". The command in s. 35(a) might well preclude a construction of s. 21 of the Act placing the onus of proof in relation to practicability on an informant if that would have the consequence that the purpose or object of the Act was, in some way, impeded or frustrated. However, that consequence does not follow merely because, in some cases, the question of practicability may turn on a consideration of the cost or suitability of the available means of removing or mitigating a risk, particularly when evidence on other aspects of practicability will, in a good many cases, have the practical effect of shifting the evidentiary burden on matters pertaining to cost and suitability onto the defendant.

The decision in Nimmo also rested in part on a discerned legislative intention to impose a duty different from that arising at common law. Thus, Lord Guest [36] considered that it was not intended to "equiperate the duty under the statute to the duty under common law, namely, to take such steps as are reasonably practicable to keep the working place safe". And Lord Upjohn stated [37] :

it is the duty of the employer to make the place safe so far as is reasonably practicable. It is his duty with his experts to consider the state of the place of work in all its circumstances and to take whatever steps he can, so far as reasonably practicable, to make it safe. He must know and be able to give the reasons why he considered it was impracticable for him to make the place safe. If he cannot explain that, it can only be because he failed to give it proper consideration, in breach of his bounden duty to the safety of his workmen. 1. [1968] A.C., at p. 122. 2. [1968] A.C., at pp. 125-126.

If a statute imposes civil liability (whether or not it also imposes criminal liability), that may support a construction which does more than repeat, in legislative form, the substance of a civil obligation arising under the common law. However, that is not the present case, for Pt III of the Act imposes criminal liability only.

There is one matter which, in our opinion, tells decisively against a construction of s. 21 of the Act which would place the onus of proof in relation to practicability on an employer. The obligation imposed by s. 21(1) - even as elaborated in s. 21(2) in respect of plant and systems of work (par. (a)), use, handling, storage and transport of plant and substances (par. (b)), the maintenance of the workplace (par. (c)), provision of facilities (par. (d)) and the provision of information, instruction, training and supervision (par. (e)) - is perfectly general. And, as the definition of "practicable" shows, the question of practicability is one which must be answered by a consideration of the means by which a risk can be removed or mitigated. Different considerations may apply to other legislative provisions as, for example, a provision which imposes a specific requirement or lays down a specified procedure to be followed in particular circumstances, so far as that requirement or procedure is practicable. In such a case the requirement or procedure is clear. If the requirement or procedure is not complied with, the only issue is whether it is practicable. But where a general obligation is imposed, the means which might practicably be adopted are confined only by the nature of the risk or hazard. That is because, as was pointed out in Gibson v. British Insulated Callenders Construction Co. [38] , per Viscount Dilhorne, if it were established that one or even several methods were impracticable, it would not follow that the workplace was as safe as practicable. If the onus is on an informant, the issue is confined by the means which the informant claims were practicable in the circumstances. If the onus is on a defendant, the issue, if confined at all, is confined only by the "means of making the place safer which the ingenuity of counsel can suggest" in the course of cross-examination: Gibson [39] , per Lord Diplock. It is impossible to read into s. 21 of the Act an intention to place the onus of proof of the issue of practicability on a defendant when that onus would entail the additional burden of anticipating and negating the practicability of every possible means of avoiding or mitigating a risk or accident that might be raised in the course of cross-examination.

[1973] S.C. (H.L.) 15, at p. 27. 2. [1973] S.C., at p. 28.

The informant's argument as to the onus of proof on the issue of practicability fails.

The charge upon which the defendant was convicted was that:

on the second day of November 1985 being the occupier of a workplace at 68 Cross Street Footscray [it] did fail to provide guards for a dangerous part of the plant of the workplace to wit the hopper section of a Banbury Mill, factory number six, so as to prevent as far as practicable loss of life or bodily injury in contravention of the provisions of Regulation 10 of the Occupational Health and Safety (Machinery) Regulations 1985.

The only issue raised by the defendant's appeal is whether, on 2 November 1985, when the Banbury Mill was not being used for production, the hopper section of that machine was a dangerous part of the workplace. It was dangerous if it was "a possible cause of injury to anybody acting in a way in which a human being may be reasonably expected to act in circumstances which may be reasonably expected to occur": Walker v. Bletchley Flettons Ltd. [40] , cited with approval by Dixon C.J. in Dunlop Rubber Australia Ltd. v. Buckley [41] .

[1937] 1 All E.R. 170, at p. 175. 2. (1952) 87 C.L.R. 313, at p. 320.

On behalf of the defendant it was argued that the majority in the Full Court wrongly failed to consider whether the machine was dangerous in the circumstances that obtained on 2 November 1985, and, instead, considered the circumstances that would have obtained if the machine had then been used for production. Even if that be so (and that is by no means entirely clear) and assuming the correctness of the argument, it does not follow that the defendant's appeal must succeed. The magistrate did no more than state his conclusion that the machine was dangerous. Accordingly, even on the defendant's argument it is necessary to show that there was no or insufficient evidence for a finding that the machine was dangerous in the circumstances obtaining on 2 November 1985.

It may be, as was argued on behalf of the defendant, that the accident that occurred to Mr. Everest was not foreseeable. However, it was conceded that it was foreseeable that Mr. Everest might test the machine. That concession necessarily has within it the further concession that Mr. Everest might be expected to operate the machine by causing the hopper intake door to open and close whilst he was in its vicinity. In the light of the concession made, the evidence permitted of a finding that, in the circumstances obtaining on 2 November 1985, the hopper door, when opening and closing, was dangerous in that it was a possible source of injury to a person who might be expected to be in its vicinity.

The defendant's appeal depends essentially on a consideration of the facts as revealed in the Magistrates' Court. Notwithstanding the conclusion that the defendant's appeal cannot succeed on the only ground argued, the nature of the issue raised is such that the appropriate order is that special leave to appeal should be revoked.

On behalf of the informant it was submitted that, quite apart from the question as to the onus of proof, the orders nisi obtained by him should be made absolute on the ground found by Ormiston J. in the Full Court, namely, that the magistrate erred in holding that s. 21(1) and (2)(a) of the Act permit "[a]n employer to [raise] in his defence that the consequences were not reasonably foreseeable."

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. But, in the view of Ormiston J., the magistrate wrongly held that the workplace was safe because the events which occurred on 2 November 1985 were not foreseeable and, presumably also in the view of Ormiston J., for that reason the question of practicability did not arise. Given the finding, on the charge brought under the Regulations, that the hopper door was dangerous, it would seem inevitable that the magistrate had regard to foreseeability on the particular issues of practicability as raised by the charges laid under the Act and not on the general issue whether the workplace was safe. However, for reasons that we now state, that matter need not be explored.

During the course of argument it was conceded by counsel for the informant that, if special leave were revoked in respect of the defendant's appeal, it would be appropriate to limit the grant of special leave to the informant to the primary question concerning onus of proof. In our opinion that concession was rightly made. It would be inappropriate to grant special leave to argue what is, in effect, an appeal against acquittal on factual grounds. Moreover, assuming the correctness of what was said by Ormiston J., the question would then arise whether, in the particular circumstances of this case, the charge under the Regulations should have been made in the alternative rather than cumulatively upon the charges under the Act.

The grant of special leave to the informant should be revoked save as to the question of onus of proof. The informant's appeal should be dismissed. The grant of special leave to the defendant should be revoked.

At a glance

Court

Decision date

Before

Source

Judgment (71 paragraphs)

Parties