Criminal law and procedure - Regulatory offence - Failure to maintain safe working environment - Cyclone damaged remote rail camp - Sufficiency of particulars of charge - Meaning of a 'working environment' - Employer subject to statutory duty - Test for breach - Reasonable practicability as test for discharge of duty - Role of foreseeability of hazard

Occupational Safety and Health Act 1984 (WA), s 3, s 19

Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249

Hamersley Iron Pty Ltd v Robinson (Unreported, WASC, Library No 980573, 2 October 1998)

Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531

R v Australian Char Pty Ltd [1999] 3 VR 834

Reilly v Devcon Australia Pty Ltd [2008] WASCA 84; (2008) 36 WAR 402

1 The appellant is the Director of the Department of Consumer and Employment Protection.

2 By a prosecution notice dated 22 July 2008, he charged the respondent with two offences alleged to have been committed at a place described as Rail Village 1, East Pilbara between 7 and 10 March 2007. The offences charged were as follows:

1. being an employer, failed, so far as was practicable, to provide and maintain a working environment in which its employees were not exposed to hazards by failing to provide and maintain adequate safety procedures to be observed in the event of a cyclone, contrary to section 19(1) of the Occupational Safety and Health Act 1984, and that by that contravention caused serious harm to an employee, namely Kevin Dwyer, contrary to section 19A(2) of the Occupational Safety and Health Act 1984.
2. being a principal, who in the course of trade or business engaged a contractor, namely A B Reinforcing Pty Ltd (ACN 119 351 834), failed, so far as was practicable, to provide and maintain a working environment in which any person employed or engaged by the contractor to carry out or assist in carrying out the work concerned, was not exposed to hazards, by failing to provide and maintain adequate safety procedures to be observed in the event of a cyclone, contrary to sections 19(1), 19A(3) and 23D of the Occupational Safety and Health Act 1984 (as amended).

3 Particulars as to how the respondent failed to provide and maintain adequate safety procedures to be observed in the event of a cyclone (relative to both charges) were sought and provided in the following terms:

It is alleged that the Accused failed to provide and maintain adequate safety procedures to be observed in the event of a cyclone in that the Accused:

(a) failed to provide and maintain an adequate cyclone procedure at Rail Village 1 at all material times; and

(b) such a cyclone procedure would have:

(i) provided for evacuation to a safe refuge at Rail Village 1; and/or

(ii) provided for evacuation from Rail Village 1; and

(iii) provided persons employed by the Accused, or persons employed or engaged by a contractor engaged by the Accused, with adequate training in the cyclone procedure.

4 The charges were tried before Magistrate Malone on 5 to 14 October 2009. On 30 October 2009 his Honour delivered comprehensive reasons for decision, thoroughly examining the charges before concluding that neither charge had been proved beyond reasonable doubt and entering judgments of acquittal.

5 I may need later to consider the terms in which his Honour expressed his reasons in more detail, but it is convenient to set out at this point his Honour's final conclusions, which encapsulate his views. He said:

The rail camp was a working environment within the meaning of section 19(1) of the Act.

The cyclone procedures of the Accused were arguably deficient to the extent that they did not have any plan in the event that an evacuation was necessary from Rail Camp One.

The training of the employees in cyclone procedures was rudimentary and their understanding of the procedure less than coherent.

The provision in the cyclone procedures for employees to shelter in the donga accommodation at Rail Camp One was appropriate.

The triggers for evacuation of Rail Camp One were flooding or an unacceptable risk of destruction.

It was not reasonably foreseeable that Rail Camp One would flood to the point where evacuation was required.

It was not reasonably foreseeable to the Accused that there would be an unacceptable risk of destruction of Rail Camp One. In particular it was not foreseeable that;

(i) The dongas would be constructed with specifications for the wrong wind region;

(ii) The Shire of East Pilbara would approve those specifications;

(iii) The foundation systems for the dongas would be deficient.

It was reasonable to assume that the dongas would provide a safe refuge.

This assumption was reasonable because;

(i) the dongas were being placed in an area known to be the subject of cyclonic events;

(ii) the Alliance responsible for producing the specifications was committed contractually to safety;

(iii) The Shire of East Pilbara had a role to play in the enforcement of building Code and standards compliance and an expected familiarity with the area where the camp was being established; and

(iv) Previous experience pointed to employees sheltering in donga accommodation during cyclones.

The absence of an evacuation plan in the Accused's cyclone procedure did not expose its employees to a hazard.

The training issues in relation to cyclone procedures did not expose the employees to a hazard.

The Accused did not fail to provide and maintain adequate cyclone procedures at Rail Camp One.

Neither charge has been proved beyond a reasonable doubt and it is appropriate to acquit the Accused of each of the charges.

6 Two appeals against those decisions were instituted. The grounds are the same. The two appeals relate to the two charges which were originally laid, were heard together in the Magistrates Court and were the subject of the decision of the magistrate on 30 October 2009. The appeals have been ordered to be heard together.

7 The grounds of appeal, as amended, in respect of which leave to appeal has been granted, are as follows:

1. The learned magistrate erred in law in failing to determine the charges in accordance with section 19 of the Occupational Safety and Health Act 1984.

(a) Section 19 of the Occupational Safety and Health Act 1984 required the prosecution to prove the following elements beyond reasonable doubt:

(i) the respondent being an employer;

(ii) so far as was practicable;

(iii) failed to provide and maintain;

(iv) a working environment;

(v) in which its employees were not exposed to hazards,

(b) the learned magistrate instead substituted a test of reasonable forseeability.

1. The learned magistrate erred in fact and law in finding that it was not reasonably foreseeable to the respondent that there would be an unacceptable risk of destruction of Rail Camp One.
2. The learned magistrate erred in fact and law in finding that it was appropriate for the respondent to assume that the dongas would have been suitable shelters.
3. The learned magistrate erred in fact and law in failing to find the charge proved beyond reasonable doubt.

8 Although not required to do so, the respondent has conveniently lodged a notice of contention, submitting that the magistrate's decision to dismiss the charges should be affirmed on grounds other than those relied upon by his Honour, as follows:

1. The charge in respect of Christopher Richards was not properly authorised pursuant to s 52 of the Act;
2. Rail Camp 1, in particular the dongas located therein, was not a working environment within the meaning of that term in s 19(1) of the Act; and
3. Insofar as:

3.1 the alleged cyclone procedure ought to have provided for evacuation to a safe refuge at Rail Camp 1, the charges did not reveal whether it was asserted by the appellant that there was a safe refuge within Rail Camp 1;

3.2 the alleged cyclone procedure ought to have provided for evacuation from Rail Camp 1, the charges did not identify when such evacuation should have taken place, the destination of such evacuation and how it should have been implemented; and

3.3 persons employed by the respondent or insofar as persons employed by contractors engaged by the respondent ought allegedly to have been provided by the respondent with adequate training in the cyclone procedure, the charges did not reveal:

(a) what training was required;

(b) how 'adequate' training in the cyclone procedure would have prevented the respondent's employees or employees of contractors engaged by the respondent from being exposed to hazards at Rail Camp 1

and accordingly the charges did not on their face identify the essential factual ingredients of the alleged offences charged and such failures ought to have been fatal to the prosecution in the absence of an amendment.

9 It is convenient at this stage to deal with ground 1 of the notice of contention. The charge in respect of Christopher Richards is the second charge referred to above. Prior to its amendment, it alleged that by the breach of duty set out in the charge, the respondent caused serious harm to Mr Richards who was an employee of the contractor AB Reinforcing Pty Ltd. The amendment deleted that allegation.

10 By s 52 of the Occupational Safety and Health Act 1984 (WA), proceedings for an offence against the Act may be instituted by any person authorised by the WorkSafe Western Australia Commissioner. The evidence established that the commissioner authorised the appellant to institute proceedings against the respondent for two offences allegedly committed at Rail Village 1, East Pilbara between 7 and 10 March 2007. The authorities to prosecute referred to proceedings under s 19(1) and s 19A(2) of the Act in relation to serious harm caused respectively to Mr Kevin Dwyer and Mr Christopher Richards. Those authorities resulted in the first and second charges, respectively.

11 Section 19(1) sets out the terms of an employer's duty, so far as is practicable, to provide and maintain a working environment in which the employees of the employer are not exposed to hazards. I shall return to this section in more detail shortly. Section 19A creates offences which will result if an employer breaches the duty imposed by s 19(1).

12 Section 19A(2) makes it an offence, punishable by a particular penalty range, if an employer breaches s 19(1) other than by gross negligence and by the contravention causes the death of, or serious harm to, an employee. It will be seen that that is the contention which is particularly the subject of the first charge in the prosecution notice, a charge brought precisely in terms of the authority provided to the appellant by the commissioner.

13 That was also the form in which the second charge was originally laid. But the amendment effectively abandoned the allegation that by the breach of the duty imposed by s 19(1), Mr Richards was caused to suffer serious harm. Section 19A(3) creates an offence committed when an employer contravenes s 19(1) other than in circumstances of gross negligence and where it is not alleged that the contravention has caused the death of, or serious harm to, an employee. That offence is, as might be anticipated, punishable by a lesser penalty. The penalty levels are defined comprehensively in s 3A of the Act.

14 For completeness, I note that the second charge referred to s 23D of the Act. It is this section which applies the provisions of s 19 and s 19A to a principal who engages a contractor in the course of trade or business, to carry out work for the principal, as if the principal were the employer of the contractor, and to any person employed by the contractor as if that person was an employee of the principal. The fact that s 23D is not mentioned in the authority to prosecute is, in my opinion, of no relevance to the question raised by ground 1 of the notice of contention.

15 The short answer to the point raised, it seems to me, is that the authority to prosecute for the greater offence, must include the authority to prosecute for the lesser. The appellant was authorised to prosecute in relation to an offence under s 19(1) and s 19A on the basis that the breach of duty caused serious harm to Mr Richards. It seems to me that, necessarily, that authority involved the authority to prosecute for the breach of duty on the basis that it was not alleged to have caused serious harm to Mr Richards. I note that by s 19A(4) of the Act, had the amendment not been made, but the causation was not proved, the respondent, although charged with an offence under s 19A(2) insofar as the matter affected Mr Richards, could have been convicted of an offence under s 19A(3). There is no merit, in my opinion, in the point raised by ground 1 of the notice of contention.

16 The respondent was contracted to do track and bridge work in the construction of a railway line between iron ore mining and processing facilities conducted by the Fortescue Metal Group Ltd at the Cloudbreak Mine in the Pilbara and port facilities at Port Hedland. This project was managed by a group which was known as Team 45. It was the responsibility of this group to plan and execute the project, including a facility which seems to have been known variously as Rail Village or Rail Camp 1.

17 Team 45 engaged a company to build the village facilities. A building licence was issued by the Shire of East Pilbara. The building work was to be done in accordance with approved plans and specifications. They were to be able to withstand a wind load related to the region and the terrain where the village was located. The village having been constructed, it was handed over to a service company to manage, service and administer the facility.

18 The facilities appear to have been extensive. They were substantially comprised of residential units known as dongas. There was a dry mess and a wet mess, various recreational areas and buildings, what is described as a muster area, a fuel facility and what appear to be workshop buildings. The respondent had constructed an office building about 150 m from the residential accommodation.

19 Some of the respondent's employees worked there, but generally they would commence the day at what were called pre-start meetings held at the village and from there would be taken to the day's work on the railway, wherever that was at the time, in a location some distance from the village. The employees of the respondent and its subcontractors were allocated accommodation in various dongas.

20 The area of the Pilbara where the camp was situated, about 90 km from the smoothed coastline, is notorious for being prone to cyclones during the wet season from about November to March. There is an Australian Standard incorporated into the relevant building code which divides the area into four wind regions as one proceeds notionally inland from the coast. The wind force which has to be accommodated decreases the further inland one gets.

21 Wind Region D is adjacent to the coast. As one goes inland, one would pass in turn through Wind Region C, Wind Region B and Wind Region A. The approval by the shire was related to Wind Region A which commences over 150 km from the smoothed coastline. As I have said, this village was constructed about 90 km from the coast and it was in fact in Wind Region C. The dongas were not designed to withstand winds of the force that the Code predicted was possible.

22 The dongas were constructed so that they were tied to foundations by welded steel rods. The tie-downs, it was discovered later, were inadequate and the welds in some cases displayed poor workmanship and were less effective than should have been the case.

23 It seems from the magistrate's findings, that those involved on the ground, so to speak, in the management of the respondent, took the view that the corporate entities involved in the construction and management of the village were reputable, knew the risk and would have ensured that the village was constructed as required to safely weather a cyclonic event of the sort which might be anticipated.

24 In that context, it appears that the respondent's written cyclone procedure was focused upon tying down equipment which might shift under high winds, both at the relevant worksite and at the village. Having done that, and equipped themselves with supplies for a reasonable period, the employees were to go to their dongas to shelter there and wait out the storm. This, it appeared, was a relatively standard procedure in the Pilbara.

25 There was, it seems, no procedure to evacuate the village, nor had any training or instruction been given as to when that might be required. During the course of the particular cyclonic event, a member of the Team 45 management emailed a written cyclone procedure to the respondent's supervisors, requiring them to ensure that employees took shelter in the dongas.

26 Tropical cyclone George formed on 3 March 2007 in the northern Kimberley region. It moved slowly westwards into the Indian Ocean on 5 March 2007. On the morning of 7 March, the cyclone turned 90 degrees to the south. It became a severe tropical cyclone Category 3 by 9 pm on 7 March. The cyclone was intensifying. Its path was not predicted.

27 It crossed the coast north of Port Hedland. Warnings were being broadcast, extending by 4.15 am on 8 March to the area which included Rail Village 1. Just before crossing the coast, the cyclone reached peak intensity with a mean wind speed of about 205 kph, gusting to about 285 kph. It crossed the coast at about 10 pm on 8 March.

28 By then, the Team 45 emergency response coordinator at the village had long since been aware that a yellow alert had been issued. Worksites were tied down to prevent material becoming airborne or equipment being damaged and the work crews returned to the village between 11 am and 1.30 pm on 8 March.

29 At about 4 pm that afternoon, there was a meeting of all those at the village and everybody was advised to take sufficient food and water to their dongas and to remain there until the all clear was given. They were told that a siren would be sounded when the red alert was issued and this was done, the red alert having been issued at about 6 pm on 8 March. The instruction given was in accordance with the agreement of senior personnel, including the respondent's senior supervisor, who had met and determined that the employees should remain at the village and take shelter in the dongas.

30 The cyclone passed over the village in the early hours of the morning of 9 March 2007. It was still generating severe cyclonic winds and heavy rain. The winds caused the concrete footings of some of the dongas to become dislodged and some of the tie-downs were pulled free, causing dongas to lift and pull away from their foundations. Some blew against other dongas. Some were overturned. The majority survived intact, as did the respondent's site offices at the camp, which had been constructed by the respondent and rated to withstand a Category 5 cyclone such as Cyclone George became.

31 Some people were injured, including Mr Dwyer. When his donga broke free, he suffered 10 fractured ribs, a punctured lung, fractured vertebrae and dental injuries. It would come as no surprise that this was conceded to be serious harm within the meaning of s 19A(2) of the Act.

32 A question raised at trial and by ground 2 of the notice of contention, is whether Rail Village 1 and in particular the dongas which were the residential portion of that village, constituted 'a working environment' within the meaning of the Act, because that is the place in respect of which the employer has the duty of care under s 19(1) of the Act. That question arose in respect of both charges.

33 I have mentioned that the second charge, calling in aid the provisions of s 23D, was in respect of the duties of the respondent as a principal in relation to the employees of a contractor in respect of matters over which the principal has the capacity to exercise control. No question arose as to whether the respondent was in that position with respect to an employee of a subcontractor such as Mr Richards in relation to the provision of a safe working environment in the circumstances of this case: cf Reilly v Devcon Australia Pty Ltd [2008] WASCA 84; (2008) 36 WAR 402.

34 Section 19 provides as follows:

(1) An employer shall, so far as is practicable, provide and maintain a working environment in which the employees of the employer (the employees) are not exposed to hazards and in particular, but without limiting the generality of the foregoing, an employer shall -

(a) provide and maintain workplaces, plant, and systems of work such that, so far as is practicable, the employees are not exposed to hazards;

(b) provide such information, instruction, and training to, and supervision of, the employees as is necessary to enable them to perform their work in such a manner that they are not exposed to hazards;

(c) consult and cooperate with safety and health representatives, if any, and other employees at the workplace, regarding occupational safety and health at the workplace;

(d) where it is not practicable to avoid the presence of hazards at the workplace, provide the employees with, or otherwise provide for the employees to have, such adequate personal protective clothing and equipment as is practicable to protect them against those hazards, without any cost to the employees; and

(e) make arrangements for ensuring, so far as is practicable, that -

(i) the use, cleaning, maintenance, transportation and disposal of plant; and

(ii) the use, handling, processing, storage, transportation and disposal of substances,

at the workplace is carried out in a manner such that the employees are not exposed to hazards.

(2) In determining the training required to be provided in accordance with subsection (1)(b) regard shall be had to the functions performed by employees and the capacities in which they are employed.

35 The term 'working environment' is not defined, but there is a definition of 'workplace' in s 3(1) which is as follows:

workplace means a place, whether or not in an aircraft, ship, vehicle, building, or other structure, where employees or self employed persons work or are likely to be in the course of their work.

36 It would seem that a workplace is a physical place, a place defined by boundaries even if they are only boundaries within which an employee or other person works or is likely to be in the course of their work.

37 The objects of the Act are set out in s 5 as follows:

(a) to promote and secure the safety and health of persons at work;

(b) to protect persons at work against hazards;

(c) to assist in securing safe and hygienic work environments;

(d) to reduce, eliminate and control the hazards to which persons are exposed at work;

(e) to foster cooperation and consultation between and to provide for the participation of employers and employees and associations representing employers and employees in the formulation and implementation of safety and health standards to current levels of technical knowledge and development;

(f) to provide for formulation of policies and for the coordination of the administration of laws relating to occupational safety and health;

(g) to promote education and community awareness on matters relating to occupational safety and health.

38 Here, it can be seen, that the word 'work' is used, not to describe a workplace but to describe an activity and it is noticeable that par (c) refers to securing safe and hygienic work environments. This, it seems to me, is a term being used in a more general sense than the word workplace.

39 In my opinion, we see that reflected in s 19 which imposes a duty to provide and maintain a working environment in which the employees are not exposed to hazards. The more particular expressions of that duty in s 19(1)(a), (c), (d) and (e) refer to things which are to be done at, or in relation to a workplace. In other words, s 19(1) states the duty generally in relation to the working environment and then adds particular content, in some cases in relation to the workplace, the place where work is done.

40 In other cases, there is no such limitation because the Act is dealing with a working environment in relation to which the employer has the capacity to exercise control and make provision for the safety of employees. The concept of a working environment is expansive. It is a reference to the circumstance or environment in which the work is being performed and to the work activity itself.

41 The same approach can be observed in s 21 which imposes upon a self-employed person, a duty to 'take reasonable care to ensure his or her own safety and health at work.' The focus here is upon the activity, not upon the place. In my opinion, s 22 is expressed consistently when it imposes duties upon a person who has to some extent, control of a workplace where persons who are not employees of that person work, or are likely to be in the course of their work.

42 In its submissions on this issue, the respondent referred to the terms of s 23G. They are as follows:

23G. Duty of employer to maintain safe premises

(a) means residential premises that are situated outside -

(i) a townsite within the meaning in section 26(1) of the Land Administration Act 1997; and

(ii) the metropolitan region as defined in the Planning and Development Act 2005;

(b) includes land and outbuildings that are intended to be used in connection with the occupation of the premises.

(a) an employee occupies residential premises that are owned by or under the control of the employee's employer; and

(b) the occupancy is necessary for the purposes of the employment because other accommodation is not reasonably available in the area concerned,

the employer must, so far as is practicable, maintain the premises so that the employee occupying the premises is not exposed to hazards at the premises.

(3) Subsection (2) does not apply if the occupancy is pursuant to a written agreement containing terms that might reasonably be expected to apply to a letting of the residential premises to a tenant.

(4) This section does not apply to the occupation of residential premises by an employee who is employed at a workplace referred to in section 4(2).

43 Section 23G(4) is not relevant to this case and it may be that the dongas were residential premises of a kind which would attract the operation of this section and impose upon the respondent a duty to maintain the premises so that the employee occupying the donga would not be exposed to hazards at the premises. However, I can understand why it would not be considered that the dongas did not in themselves, because they were improperly maintained, present relevant hazards to the employees who occupied them.

44 In other words, it may be that the duties imposed by s 23G and s 19 may overlap, or they may not. I do not accept the proposition however, that if one found that it was open to charge an offence against s 23G, it would not be open to charge an offence constituted by the contravention of s 19.

45 In my opinion, the working environment within the meaning of the Act is just what it says. The environment, whether or not that be a particular place, which is constituted by the work being done and the surrounding circumstances in which the work is, or is to be, performed.

46 His Honour the magistrate put the question wrongly when he asked himself whether the dongas were a working environment within the meaning of s 19(1). He answered the question affirmatively, but the true question was whether Rail Village 1 was a working environment within the meaning of s 19(1). The dongas were part of that working environment, although they were to provide residential accommodation, and Rail Village 1 was undoubtedly a working environment within the meaning of the Act.

47 It was an isolated location. Workers lived there while they were at work. They were subject to controls by the respondent while they did so. The employees started their day at work, at Rail Village 1. It was from there they were despatched to particular workplaces. Vehicles and other plant were maintained there. The respondent's administrative offices were there. Employees were subject to direction by the respondent's supervisors while they were at the village.

48 It would be highly artificial, and in my view wrong, to conclude that particular places were workplaces or constituted a working environment at Rail Village 1, but the dongas were not part of that place and were not part of the working environment which that place constituted.

49 The charges as laid adopted the language of s 19(1) in its general formulation of the duty imposed upon the respondent employer. It was alleged that the respondent failed to provide and maintain a working environment in which its employees were not exposed to hazards. It is evident that the formulation of the charges did not call in aid, or rely upon, the specific formulations of the duty in s 19(1)(a) - (e).

50 The charges particularised the manner of the alleged contravention by referring to a failure to provide and maintain adequate safety procedures to be observed in the event of a cyclone. The particulars provided before the trial made it clear that it was alleged that the safety procedures provided and maintained, to be observed in the event of a cyclone, were inadequate because they did not provide for evacuation to a safe refuge at Rail Village 1 and/or provide for evacuation from Rail Village 1. Nor, it was said, did they provide employees with adequate training in the cyclone procedure.

51 Ground 3 of the notice of contention complains that in respect of each of those elements of failure, the particularisation was inadequate to explain to the respondent the case it was to meet. No complaint of this nature was raised by the respondent at the trial which, as has been seen, took place over a number of days, involved the calling of much evidence, both evidence as to the facts and expert evidence, and involved lengthy debate between counsel as to whether the respondent's guilt of the offences charged, had been established beyond reasonable doubt.

52 The Criminal Procedure Act 2004 (WA), s 23(1), introduces Sch 1 to the Act in relation to prosecution notices and the charges in them. Section 23(2)(b) requires a prosecution notice to comply with Sch 1 Div 2. A central provision in that part of Sch 1 is cl 5. Clause 5(1) requires a charge in a prosecution notice to inform the accused of the alleged offence, 'in enough detail to enable the accused to understand and defend the charge'. The charge must 'describe the offence with reasonable clarity', and in that regard, by cl 5(2)(a) 'it is sufficient to describe an offence in the words of the written law that creates it'.

53 Here, as has been seen, the prosecution went well beyond that and voluntarily provided particulars in respect of which, if there was any perceived inadequacy, the respondent could have sought an order from the court under s 131 of the Criminal Procedure Act for further particulars to be given. Had that been done, I doubt whether the court would have been moved by the criticisms made in ground 3 of the notice of contention.

54 It seems to me that for better or worse, the nature of the charges against the respondent was that the duty imposed by s 19(1) was breached because the respondent limited its safety procedure to have the employees take refuge in the dongas which were, in some cases, incapable of withstanding the sort of cyclonic wind forces which might be anticipated to strike Rail Village 1 at this time of the year.

55 It seems to me that the appellant contended that it was for the respondent to identify a safe refuge in the event of a cyclone such as Cyclone George, either at Rail Village 1 or, if necessary, at some other place. It was for the respondent, the appellant contended by the particulars he provided, having identified a safe refuge, to ensure that the employees understood what was required for their safety and were properly trained to enable them to carry out the correct procedure, rather than to simply assume that the dongas were safe and to be instructed to seek refuge there.

56 In my opinion, in relation to a case put in that way, again without at this stage commenting upon the capacity of that case to establish a contravention of s 19(1), it was not for the appellant to identify a safe refuge, whether at Rail Village 1 or somewhere else and to say when and how employees should have been enabled to go to that place of safe refuge. The appellant's case was that it was for the respondent employer to take those steps and to ensure that its employees had access to that place of safety in a timely way. It was clear, on the particulars given, and as the case was fought out, that by training the employees in the appropriate safety procedure, the appellant meant no more than that it was for the respondent to ensure that the employees knew what the procedure was and when it was to be implemented.

57 In support of its argument in relation to this ground of the notice of contention, the respondent cited the recent decision of the High Court in Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531, a case in which the High Court gave judgment on 3 February 2010, well after this case had been tried in the Magistrates Court and after Magistrate Malone had published his reasons for decision. It is an interesting case because it concerned provisions such as s 19 of our Act, found in the Occupational Health and Safety Act 1983 (NSW), s 15 and s 16. However, the mode of expression of the duty in the New South Wales Act is significantly different from the way it is put in s 19(1).

58 In the New South Wales Act, the duty imposed on an employer is to 'ensure the health, safety and welfare at work of all the employer's employees.' Then, as in our s 19(1), there are a number of particular expressions of the duty set out. It was held, as would be held here, that the duty so imposed was non-delegable. In other words, the employer could not discharge its obligation by employing another to take measures calculated to provide for the health, safety and welfare at work of the employees.

59 In referring to the nature of the duty, the plurality (Heydon J delivering separate reasons in dissent on one point) said of the duty:

It is not expressed in terms of the standard recognised by the common law, to take reasonable care. It is higher. So much is evident from the requirement 'to ensure' the health, safety and welfare of employees or that persons are not exposed to risks to their health and safety at the place of work. The exclusion of the common law standard is confirmed by the terms of the defences provided by s 53, to which reference will shortly be made (552) [10].

60 The New South Wales Act therefore commenced with a duty stated in absolute terms, but qualified by a capacity to raise a defence which it would be for the defendant to prove, to the civil standard of proof, under s 53. The relevant defence for present purposes, would be that, '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.'

61 In the context of that statutory scheme, it can well be understood why the High Court went on to hold that it was for the prosecution to identify the measures which should have been taken. If that were not so, the employer would be unable to make out the defence unless it could show to the civil standard of proof, that it was not reasonably practicable to comply with any conceivable way in which, in the particular case, the duty might have been breached. It was for the prosecution, so it was held, to identify in the charge the risk to the health, safety and welfare of the employees and what it is alleged might have been done to ensure that that risk did not eventuate: 553 - 555 [14] - [19].

62 That reasoning may not apply to the different wording of our Act, but I accept that much the same observation might be made about the standard of pleading to be adopted in a prosecution notice charging offences under our Act, as in this case. As I have said, in my view, the charges in this case, as amplified by the particulars given, expressed with reasonable clarity the nature of the appellant's case, from which he did not depart in its presentation.

The nature of the duty imposed on the employer

63 The expression of that duty in s 19(1) is in a form common throughout the Australian jurisdictions with the exception of New South Wales. The duty is concerned with exposure to hazards which may affect employees in the working environment. I have expressed my views about the meaning of the term 'working environment' and I have said that in my view, Rail Village 1 constituted a working environment. The word 'hazard' is defined in s 3(1) as follows:

hazard, in relation to a person, means anything that may result in -

(a) injury to the person; or

(b) harm to the health of the person;

The relevant hazard, it was clear, was the impact upon Rail Village 1 of the relatively unpredictable forces of nature, associated with the passage over the village of a cyclone, which might be of the severity of tropical cyclone George.

64 The respondent's obligation then was to act, 'so far as is practicable', to provide and maintain a working environment in the village, so that the employees were not exposed to hazards to their person or health which might result from the passage over the village of a cyclone such as tropical cyclone George.

65 The word 'practicable' is defined in s 3(1) as follows:

practicable means reasonably practicable having regard, where the context permits, to -

(a) the severity of any potential injury or harm to health that may be involved, and the degree of risk of it occurring;

(b) the state of knowledge about -

(i) the injury or harm to health referred to in paragraph (a);

(ii) the risk of that injury or harm to health occurring; and

(iii) means of removing or mitigating the risk or mitigating the potential injury or harm to health;

(c) the availability, suitability, and cost of the means referred to in paragraph (b)(iii);

As to that definition, the word 'risk' is defined in relation to any injury or harm to mean, 'the probability of that injury or harm occurring'.

66 In my opinion, the statutory scheme is clearly expressed. But there are two matters that require consideration in the context of this case. While I am wary of substituting for the words of the statute, a gloss emerging from the consideration of the statutory duty in decided cases, it is necessary to understand what 'reasonably' means by way of qualification of the word 'practicable', because the duty of the employer is only breached if the prosecution establishes that it (in the person of the officers of the corporation through whom it acted) failed to do what was reasonably practicable to ensure that the employees were not exposed to the hazard of risk of injury or harm which might be posed by the cyclone.

67 The use of the word 'reasonably' has been held to establish, 'that the issue of practicability requires some consideration of the question of foreseeability': Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249, 265 per Dawson, Toohey and Gaudron JJ. However, in none of the authorities does that view equate with the proposition that the test of practicability is the objective test of reasonable foreseeability imported from the law of negligence. The proposition emerging from the authorities, including such cases as R v Australian Char Pty Ltd [1999] 3 VR 834, 849 [63], is no more than that it may not be held to be reasonably practicable to ameliorate the risk of exposure to a hazard when the hazard itself is not only unforeseen, but not reasonably to be foreseen.

68 The other matter which requires some consideration in relation to this case, is what is meant by the obligation to have regard to the state of knowledge about the injury or harm which may be involved in the hazard, the degree or probability of the injury or harm occurring, and the state of knowledge about the means of removing or mitigating the risk. If the concept of the 'state of knowledge' is properly understood, it can be seen that this case was not one which involved contention about the state of knowledge about the availability, suitability and cost of the means of removing or mitigating the risk posed by the cyclone.

69 The matter arose in Reilly, and at 509 [60] the court said:

It can be accepted that the 'state of knowledge' referred to in this definition is objective. The fact that a person who is in control of a particular 'matter' affecting safety does not know something that should have been known by a person in that position cannot answer the question whether it was reasonably practicable for that person to have done something about the matter. However, the words 'state of knowledge about ... the risk ... and means of removing or mitigating the risk ... 'encompass not only what is known concerning those matters, but also who might ordinarily be expected to have that knowledge. Consequently, when considering, for the purposes of s 19(1), whether it was reasonably practicable for a deemed employer to have avoided a particular hazard, it would be a relevant consideration that the expert knowledge required to avoid the hazard fell within the province of the specialist contractor which had been engaged to do the work that gave rise to the hazard and outside that of the deemed employer.

70 In other words, the relevant state of knowledge is not that of the particular employer who is the defendant, but what is generally known, to which, upon reasonable inquiry, the employer might have gained access. It will be recalled that in Reilly at 511 [64], the court endorsed the observations made by Steytler J in Hamersley Iron Pty Ltd v Robinson (Unreported, WASC, Library No 980573, 2 October 1998) when his Honour said that if the obligation to provide a safe workplace requires an employer to call upon expertise that it lacks, then it should do so, except of course, as Reilly demonstrated, if the particular hazard or risk fell within the expertise of a specialist contractor who appeared to the untutored eye of the employer to be performing the task reasonably, it might be difficult to conclude that the employer had breached the duty imposed upon it by s 19.

71 This is the problem canvassed in the first three grounds of appeal which may be taken together. The respondent's criticism that ground 4 is not really a ground of appeal at all is valid.

72 In the end, the prosecution turned on the findings made by his Honour the magistrate and summarised in his final conclusions which I have set out at [5]. As I have said, the question posed by the charges, as amplified by the particulars upon which the prosecution depended, was whether it was reasonably practicable to provide and maintain the working environment which was Rail Village 1 in such a state that the employees of the respondent and its contractors were not exposed to the hazard posed by the village being struck by a cyclone of the magnitude of Cyclone George.

73 The magistrate found that there was no plan to evacuate Rail Village 1 under any circumstance. He found that the cyclone procedure was for employees to shelter in the dongas. He found that the employees' training in cyclone procedures was rudimentary and their understanding of the procedure was less than coherent. But of course it was simply a matter of their following an instruction as to when and where they were to shelter.

74 His Honour held, however, that it was not reasonably foreseeable to the respondent that the hazard of a cyclone striking Rail Village 1, would be a hazard of the kind for which provision must be made if contravention of s 19 was to be avoided. His Honour reached that conclusion because he held that there was no reasonably foreseeable risk of injury or harm to any person. He reached that conclusion because his Honour was of the view that it was not reasonably foreseeable that the dongas would not withstand a cyclonic event. He said it was not reasonably foreseeable that the dongas would be constructed with specifications appropriate to the wrong wind region, that those specifications would be wrongly approved by the Shire of East Pilbara and that the foundation systems for the dongas would be deficient.

75 On the contrary, his Honour found, it was reasonable for the respondent to assume that the dongas would provide a safe refuge. Certainly, the evidence was that those responsible for the respondent's performance of its non-delegable duty towards its employees and the employees of its contractors, made the assumption that the dongas would be safe. His Honour correctly found that they were of that view, because they knew that the dongas were being located in an area known to be subject to cyclonic events, that the entity responsible for their specifications and construction was contractually committed to a safe outcome, and that it might be expected that the Shire of East Pilbara would know what they were doing and what wind strengths were to be provided for when they approved the specifications.

76 In any event, it was common practice in such a location as Rail Village 1, for employees to seek safe refuge during a cyclonic event in dongas of the kind which were provided as accommodation at Rail Village 1. The conclusion to which his Honour came therefore, was that there had been no relevant breach of duty and that both charges should be dismissed.

77 I have said that his Honour misstated the question he was to ask himself in determining whether or not the relevant breach of duty was established beyond reasonable doubt. But in my opinion, although he fell into error in that regard, that did not cause any relevant miscarriage of justice in the dismissal of the charge. And yet I have come firmly to the view that the appellant has established appellable error in the magistrate's failure to find the charges proved beyond reasonable doubt, on the basis of the facts as his Honour found them to be.

78 Before finally giving my reasons for that conclusion, I should say that I do not propose to discuss the evidence. I have read it all, including the voluminous expert evidence which, I must say, seemed to me often to stray into areas of reasonableness of assumption which had little to do with the expertise of the witnesses. Further, there was a considerable body of evidence by people connected with the respondent and otherwise, who had experienced such living conditions and cyclonic events of this kind before. There is no doubt that to shelter in the dongas was a common practice and an effective way of discharging the duty imposed by s 19, if the assumption that the dongas were adequate to withstand the forces inherent in an unpredictable cyclonic event, was in fact justified.

79 The following matters would appear to be clear. The respondent accepted the responsibility to keep its employees and the employees of its contractors safe in the event of a cyclone coming into the proximity of Rail Village 1. The plan and procedure for discharging that obligation was simple. Workers were to be brought back to Rail Village 1 in a timely way from any more remote workplace. Again, in a timely way, they were to be equipped with provisions which would provide sustenance for a reasonable period of time and they were instructed to shelter in their residential accommodation, the dongas allocated to them.

80 There was no need to consider the evacuation of Rail Village 1 if the dongas were in such a state as to provide that safe refuge. On the other hand, if that was not so, then some other measure would have to be taken and some other safe refuge would have to be found. Decisions about that were not only accepted to be the responsibility of those who were the management of the respondent on site, but also were within their competence, if necessary by taking engineering advice as to the suitability of the dongas. That was accepted. It could have been done, but nothing was done.

81 The reason why that was so, as the magistrate found, was that those acting for the respondent relied upon the competence and skill of those who constructed the dongas to ensure that they met reasonable requirements of safety against the hazard represented by a cyclone. It was assumed, because it was known that it ought to have been the case, that the dongas had been designed to specifications which had been submitted to the Shire of East Pilbara. It was assumed, because it ought to have been the case, that the Shire of East Pilbara had approved the construction of the dongas to the specifications submitted. It was assumed that the Shire approval was not upon an erroneous basis, as was in fact the case, although that was not discovered until later. Before the event it was not imagined that the Shire would approve the construction of dongas which were inadequate to provide safe refuge and so, in effect, nothing was done.

82 As I understand the evidence, there was not even an inspection by any person acting for the respondent, of the dongas on site, to ensure that the tie-downs and the foundations were of an adequate standard and the welds were of an appropriate standard of workmanship. It was not suggested that there was any impediment to those in responsible positions acting for the respondent, making these enquiries so that the respondent might be satisfied of the adequacy of its emergency procedure.

83 In my view, there was simply a failure to discharge the non-delegable duty imposed on the respondent by s 19. It might, in its eyes, have had good reason to make the assumptions upon which it relied. But in my view, it was obliged to act reasonably in the manner I have described, to take all reasonably practicable measures, which would have allowed the respondent to satisfy itself that all that could be reasonably done to alleviate the hazard, had been done.

84 It should be recalled that the area was notorious for being subject to cyclonic events at the relevant time of the year. Cyclones are notoriously unpredictable and their severity may vary markedly. If the solution of refuge in the dongas was wrong and did not provide a safe place, the risk of harm was considerable. Mr Dwyer's injuries exemplified what might happen. The remedy of enquiry and judgment was readily at hand to determine whether the dongas were capable of providing the safe refuge required to alleviate the unpredictable hazard.

85 If they were found to be unsuitable, as some were after the event found to be, and as they would have been found to be upon any reasonable inspection, another safe refuge within Rail Village 1, the administrative offices of the respondent, was available and the procedure could have been modified to provide for its use by all, or some, of the employees. The cost of investigation and decision making was minimal.

86 In my opinion, the conclusion that the respondent's guilt of the offences charged had been established beyond reasonable doubt was, with respect to the contrary view expressed by his Honour the magistrate, compelling. I will allow the appeals, set aside the acquittals and orders as to the costs of the trial and enter judgments of conviction.

87 I may say that, subject only to any contrary submission, I am minded in relation to costs, to order the respondent to pay the appellant's costs of the appeal and of the proceedings in the Magistrates Court. I will order that those costs be taxed, unless the parties are able to bring in a minute by which they agree the quantum of the costs in respect of each of the appeal and the proceedings below.

88 I am satisfied that, having convicted the respondent of both offences, I should proceed to sentence, rather than return the matter to his Honour the magistrate to perform that task. I will, upon the publication of these reasons, and before final orders are made, ask that the parties submit their respective submissions in relation to penalty in writing. The appellant is allowed 10 days from the publication of these reasons to file and serve those submissions. The respondent is allowed a further seven days after receipt of the appellant's submissions, to file and serve its submissions, effectively by way of a plea in mitigation. I will consider that material and then advise the parties whether I would be assisted by hearing further argument by counsel. If not, I will impose appropriate penalties and publish short supplementary reasons for my decision in that regard.

89 As to sentence, I note that in relation to the first charge, under s 19A(2) the respondent is liable to a level 3 penalty. Under s 3A(3)(b) the respondent is liable for a first offence to a fine of $400,000 and for a subsequent offence to a fine of $500,000. In relation to the second offence, under s 19A(3), the respondent is liable to a level 2 penalty. Under s 3A(2)(b), the maximum penalty for a first offence is a fine of $200,000 and for a subsequent offence, a fine of $250,000.

90 I have considered the possible application to the case of s 11(1) of the Sentencing Act 1995 (WA). I have concluded that the evidence, particularly that concerning the status of the respondent as an employer or principal, is not the same in relation to both charges. Two penalties would therefore, at least notionally, be required and I may indicate that if I am to impose a fine, a global fine under s 54 of the Sentencing Act would appear to me to be appropriate because there is considerable overlap in the facts so far as they establish the culpability of the respondent.

91 I mention those matters so that the parties may have an opportunity to disabuse me of any error in relation to penalty.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : KIRWIN -v- LAING O'ROURKE (BMC) PTY LTD [2010] WASC 194 (S)

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Regulatory offence - Failure to maintain safe working environment - Sentencing - Principles discussed - Otherwise turns on own facts

Kirwin v Laing O'Rourke (BMC) Pty Ltd [2010] WASC 194

Morrison v Competitive Foods Ltd t/as Hungry Jacks (Unreported, WASC, Library No 9118, 25 October 1991)

Phillips v Carbone (No 2) (1992) 10 WAR 169

Reilly v Tobiassen [2008] WASC 92

1 This is a supplementary judgment dealing substantively with a question of sentencing process. These reasons should be read with the principal reasons: Kirwin v Laing O'Rourke (BMC) Pty Ltd [2010] WASC 194.

2 In that judgment, I allowed two appeals against acquittals of the respondent of offences against s 19A(2) and (3) of the Occupational Safety and Health Act 1984 (WA) (OSH Act). I indicated in my reasons that I thought it was appropriate, if that was the conclusion to which I came, that I should go on to pass sentence [88]. In doing that, I would exercise the power conferred upon the court by the Criminal Appeals Act 2004 (WA) s 14(1)(d).

3 I made programming orders for the exchange of submissions and the provision of any other material relevant to sentencing. I have received and read comprehensive written submissions. In addition, I receive into evidence two victim impact statements and an affidavit affirmed on 18 August by a Mr Lloyd, an officer of the respondent in a position of senior management in relation to health and safety matters. I have found all that material to be of value and I have had regard to it. I have not found it necessary to call the parties before me for further oral debate upon the issue of sentencing.

4 Of course, the respondent being a corporation, the penalty to be imposed will be a fine. In the principal reasons at [89], I set out the available maximum penalties under the relevant provisions of the OSH Act. For the first offence before the court, that relating to the harm caused to the employee Mr Dwyer, because the contravention of the Act caused him serious harm, the maximum penalty for this first offence is a fine of $400,000.

5 For the second offence before the court, which originally, prior to the amendment of the charge, related to the injuries suffered by the employee of the subcontractor, Mr Richards, the maximum penalty is a fine of $200,000 for a first offence, as again this was.

6 In the principal reasons at [90], I intimated that my view, subject to submissions to the contrary, was that a global fine covering both offences would be appropriate, having regard to the considerable overlap in the facts relating to the culpability of the respondent and the circumstances of the commission of both offences.

7 Section 54 of the Sentencing Act 1995 (WA) provides that such a global fine may be imposed when two or more offences are founded on the same facts, or form part of a series of offences of the same or a similar kind. Both of those grounds for the imposition of a global fine exist in this case. However, s 54 provides that the global fine may not be more than the sum of the fines provided by the statutory penalties for each of the offences. In other words, in this case I am to work within the framework of a maximum penalty of $600,000.

8 Further, in the principal reasons at [90], I said that I had considered the possible application to the case of s 11(1) of the Sentencing Act. That subsection provides:

If the evidence necessary to establish the commission by a person of an offence under the law of this State is also the evidence necessary to establish the commission by that person of another such offence, the person may be charged and convicted of each offence but is not to be sentenced for more than one of the offences.

9 As I said at [90] of the principal reasons, my conclusion is that the evidence, particularly concerning the status of the respondent as an employer or principal, is not the same in relation to both charges. Nor was the evidence entirely the same in respect of each charge, insofar as it focused upon what occurred affecting Mr Dwyer in one case and Mr Richards in the other.

10 Since I wrote those reasons, my attention has been drawn to s 55A of the OSH Act which provides:

A person is not liable to be punished twice under this Act in respect of any act or omission.

In this case it is unnecessary to consider whether the proper application of that section would prevent two convictions, or whether the effect of the section would be limited to preclude the imposition of two sentences.

11 This question was considered by EM Heenan J in Reilly v Tobiassen [2008] WASC 92 [7]. Relying on earlier decisions, his Honour said of s 55A:

The section contemplates that concurrent but distinct legal liabilities may be established in the event of one act or omission leading to the breach of more than one provision of the Act or the Regulations. In that event, however, only one 'punishment' should be imposed. As I observed in [39] of my principal reasons, in such a situation the fact of conviction and the recording of a conviction is not in itself punishment; however, no additional penalty or sanction may be imposed in respect of the second or subsequent conviction arising from the same act or omission.

12 One of the cases upon which his Honour relied was Phillips v Carbone (No 2) (1992) 10 WAR 169. There the defendant drove a motor vehicle into a stationary vehicle, simultaneously injuring the two occupants. He was charged with two offences of dangerous driving causing bodily harm. He was convicted of one such offence, the magistrate holding that he should dismiss the second charge having regard to the application to the case of what was then s 16 of the Criminal Code (WA), which was, so far as presently material, worded identically to s 55A of the OSH Act.

13 On appeal, the Full Court held that two convictions should be recorded and two sentences passed. The relevant act in that case was held to be the act of driving the vehicle so as to cause bodily harm, a different act in respect of each person injured. On the facts as found, the defendant had simultaneously performed two separate acts of dangerous driving causing bodily harm to each of the two injured persons.

14 This is an easier case than that because I am satisfied that there were two relevant omissions. That which was the subject of the first charge was the failure as an employer to maintain a safe working environment, by which failure serious harm was caused to Mr Dwyer. The omission the subject of the second charge was the failure to maintain a safe working environment, but on this occasion by the respondent, in its character as the principal who had engaged the contractor, insofar as there was a failure to provide a safe working environment for any person employed or engaged by the contractor.

15 Although neither party made submissions to the contrary, in my opinion it is necessary to arrive at a clear view on this issue, which would potentially affect the question whether two judgments of conviction should be entered, and if they should, whether the respondent is potentially liable to the imposition of two separate fines, making it appropriate to consider in that case the question whether a global fine should be imposed, working within the expanded maximum penalty of a fine of $600,000, rather than one or other of the maximum fines of $400,000 and $200,000. As I say, in my view, no difficulty in that regard arises in this case.

16 I turn then to the matters of fact which affect sentence. For the appellant particularly, I was provided with a discussion of a series of previous cases. Many of them concerned fines imposed before, by the enactment of the OSH Act s 3A, with effect from 1 January 2005, the available monetary penalties were substantially increased. One thing stands out. The diversity of fact situations held to constitute an omission to perform a relevant duty under s 19 by an employer, or person in the position of an employer, varies so greatly that it is difficult to apply the facts and sentence in one case to the facts and sentence in another. In those circumstances there is much force in the observation which has been made by judges from time to time, that no tariff in relation to cases involving contravention of the OSH Act has emerged.

17 In Reilly at [13] - [23], EM Heenan J usefully drew together and discussed a series of cases. His Honour distilled from them some general principles which were really the application of ordinary principles of sentencing in the context of the OSH legislation.

18 In relation to a case such as this, and contravention of the duties imposed on an employer by the Act, a useful starting point is the need to give effect to the policy expressed in the objects of the Act stated in s 5, the terms of which section I set out in the principal reasons at [37].

19 When the court is concerned, as in this case, with the need to secure the safety of persons at work, to provide a safe working environment and to reduce, eliminate or control hazards to which persons at work are exposed, it seems to me that the culpability of the offender, the seriousness of the offending behaviour, will be determined by having regard to what the particular factual circumstances of the case tell the court about -

(a) The nature of the hazard with which the case is concerned, whether it is regularly or only occasionally encountered, or whether it was indeed surprising that it should arise.

(b) Given that the employer has contravened s 19 of the OSH Act by failing to adopt all reasonably practicable measures to deal with the hazard, to what extent would it be possible to alleviate the hazard by the adoption of such measures? Regard should be had to their cost and availability and whether it was generally known in the relevant area of employment what measures should be taken to alleviate the hazard.

(c) Consideration would need to be given to the nature of the risk of serious harm posed by the hazard in question. If the risk was relatively remote, that would say something about the measures which ought reasonably to have been taken, unless of course, if the hazard was not dealt with, the risk of serious harm was high if the hazard did in fact occur.

(d) Consideration would need to be given to the offending employer's track record in relation to the provision of a safe working environment and to the question whether the particular contravention was of an isolated character or whether the employer simply failed to meet acceptable standards of safety in its ordinary business practices.

(e) In that regard, if the employer was indeed ignorant of what was required to meet the test of reasonably practicable measures to alleviate an apparent or foreseeable hazard, it would be relevant to enquire about what expert advice was sought.

20 It will be observed that all I have done in setting out these considerations is to focus attention upon matters which will, in all probability, have been relevant and have been considered by the court in determining whether a relevant breach of duty in terms of s 19 has been established, so as to result in the employer's conviction. Such matters will certainly not, because they have been considered in that way, lose their relevance for sentencing purposes. It will be appreciated also that the result of giving consideration to such matters may result in circumstances which aggravate the seriousness of the offence and circumstances which tend to mitigate its seriousness.

21 In setting a series of relevant considerations I do not mean to imply that ordinary principles of sentencing are to be disregarded, eg: pleas of guilty will attract a discount in sentence in the ordinary way.

22 Of course the court is looking to impose a penalty which is properly proportionate to the offender's culpability, not only having regard to matters concerned with the commission of the offence, but also having regard to matters personal to the offender. The purposes of punishment remain, under this legislation, those which are commonly expressed as the outcome of the sentencing process. But I remain of the view, which I expressed in Morrison v Competitive Foods Ltd t/as Hungry Jacks (Unreported, WASC, Library No 9118, 25 October 1991), page 15, that in sentencing for breaches of this legislation, general deterrence is a consideration of particular importance.

23 The objects of the Act are to achieve, by the imposition of duties concerned with the creation of safe working environments, an acceptable standard of safety and the avoidance of serious injuries to workers.

24 I turn then to pass sentence in the form of a global fine covering both offences and working within the available maximum penalty of a fine of $600,000. I will not repeat the detailed discussion of factual matters set out in the principal reasons. I will, however, summarise the considerations which seem to me to be material in deciding upon the penalty to be imposed.

25 The essential failure was the failure to appreciate that the dongas did not offer adequate shelter if, as was to be anticipated at the relevant time, a significant cyclone of the magnitude of George was encountered. This was a cyclone-prone area and Rail Village 1 might well be directly in the path of such a storm.

26 The respondent's breach of duty was substantial. It actually did nothing to ensure that the buildings in Rail Village 1, in which the procedure was that employees would shelter and wait out the cyclone, were of a standard adequate to ensure that they provided a safe refuge. The respondent simply relied upon an expectation that those directly involved in the construction of the village would do their job under the oversight of the local government to ensure that appropriate cyclone-resistant construction standards were applied. This was, in effect, an act of delegation of what was a non-delegable duty and, as has been seen, it failed to produce the required degree of safety.

27 It is accepted that a reasonable inspection of the dongas, if necessary, drawing upon expert engineering advice, would readily have exposed the difficulty. There was no suggestion that any substantial cost would be involved in carrying out that inspection or providing a remedy.

28 It is only necessary to read, as I have done, the victim impact statements lodged with the court by Mr Dwyer and Mr Richards, to have reinforced in the mind of the court the grave danger to employees which inadequate protection against the cyclone posed. I will not embarrass those individuals by including detail of the content of their statements in these published reasons, but it is clear that a high standard of care and meticulous performance of the duty imposed by s 19 of the OSH Act was required, given the gravity of the harm which might result from failure to do so.

29 That, during the cyclone season, the hazard with which this case was concerned would materialise, was a distinct possibility. If adequate protection was not provided, the gravity of the harm which might be caused to employees was considerable. A high standard of compliance with the duty to establish and maintain a safe working environment was required.

30 On the other hand, the evidence of Mr Lloyd's affidavit shows that with respect to matters of the safety and health of its employees and those employed by its contractors, the respondent is, generally speaking, a good employer. Mr Lloyd appends references from clients which testify to that fact. These were first offences. Although measures have been taken to prevent the possibility of a recurrence of this breach, and that is consistent with the ordinarily good performance of the respondent, the nature of the breach was effectively systemic because it was a central plank in the safety procedure that the dongas provided the necessary safe refuge and the respondent failed to verify that that was the case.

31 I impose a global fine of $90,000. The calculations which interested persons will inevitably make will show that that represents a penalty of 15% of the maximum. The processes of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) will be available if any enforcement process is required.