Forster v Osprey Manufacturing Pty Ltd - [2003] NSWIRComm 161 - NSWIRComm 2003 case summary — Zoe

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Forster v Osprey Manufacturing Pty Ltd

[2003] NSWIRComm 161

Industrial Relations Commission (NSW)|2003-07-01|Before: Wright J, Mr J

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2003-07-01

Before

Wright J, Mr J

Catchwords

06/07/2002 DATE OF JUDGMENT: 05/29/2003

Source

Original judgment source is linked above.

Catchwords

06/07/2002 DATE OF JUDGMENT: 05/29/2003

Judgment (61 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Forster v Osprey Manufacturing Pty Ltd [2003] NSWIRComm 161 PROSECUTOR Inspector John Forster PARTIES : DEFENDANT Osprey Manuafacturing Pty Ltd FILE NUMBER: IRC 5058 of 2001 CORAM: Wright J President CATCHWORDS : OCCUPATIONAL HEALTH AND SAFETY - Interlocutory - Motion seeking dismissal or permanent stay - Nature of "continuing offence" - Statutory construction - Proceedings dismissed - Filed out of time. Industrial Relations Act 1996 s 168 Interpretation Act 1987 s 33 Occupational Health and Safety Act 1983 s 18 s 49 LEGISLATION CITED : Occupational Health and Safety Act 2000 s 11 s 107 Occupational Health and Safety Amendment Act 1997 Supreme Court (Summary Jurisdiction) Act 1967 s 4 Workcover Legislation Amendment Act 1995 Workplace Health and Safety Act 1995 (Tas) Brammer v Deery Hotels Pty Ltd (1974) 22 FLR 276 Bridge v Lindrum [1957] AR (NSW) 356 Burgess v Kaputar Timbers Pty Limited (1999) 91 IR 378 Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Cooper Brookes (Wollongong) Pty Limited v Commissioner of Taxation (Cth) (1981) 147 CLR 297 Ellis v Ellis [1896] P 251 Environment Protection Authority v Alkem Drums Pty Ltd [2000] 113 LGERA 130 Environmental Protection Authority v CSR Limited Trading as CSR Wood Panels [2001] NSWLEC 41 Heydon's Case (1584) 76 ER 637 J Robins Sons Limited v Maloney [1934] AR (NSW) 155 Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 57 CASES CITED : McMillan Britton and Kell Pty Limited v WorkCover Authority of New South Wales (Inspector Blake) (1999) 89 IR 464 Mills v Meeking (1990) 169 CLR 214 National Hire Pty Limited v Howard [2003] NSWIRComm 144 Pearce v BHP Steel (AWI) Pty Ltd (1998) 85 IR 305 R v Industrial Appeals Court Ex parte Barelli's Bakeries Pty Limited [1965] VR 615 Re Club Employees (State) Award [2002] NSWIRComm 362 Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 Slivak v Lurgi (Australia) Ltd (2001) 205 CLR 304 Sloggett v Adams (1953) 70 WN (NSW) 206 Union Trustee Co of Australia Ltd v Church of England Property Trust (1946) 46 SR (NSW) 298 Woolworths Ltd v Crotty (1942) 66 CLR 603 WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 WorkCover Authority of NSW (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 HEARING DATES: 03/13/2002; 06/07/2002 DATE OF JUDGMENT: 05/29/2003

[9]

(a) the Defendant, Osprey Manufacturing Pty Ltd (ACN 069 062 684) ("Osprey") was at all material times a company duly incorporated with its registered office located at Walker Partners, 162 Hume Street, East Toowoomba in the State of Queensland; (b) on or about 9 February 1999 Namoi ordered the loader from the Defendant; (c) on or about on 7 May 1999 the Defendant delivered the loader to the Merah North Cotton Gin ("the premises") for use by persons at work with Namoi; (d) on 30 July 1999, a person at work for Namoi, Martin Owen Holgate ("Holgate") sustained a compound fracture of the right tibia and fibula as a result of his leg being crushed between the loader and the chain bed conveyor at the premises; (e) on 30 July 1999, a Namoi employee, Christian Marc Newell ("Newell") entered the cabin of the loader and reset the red stop button or park brake before he sat in the operator's seat. As he sat in the seat, Newell noticed that the loader was moving in a forward direction. Newell then reached for the hydrostatic control and placed the loader into reverse. During the time that it took for the hydraulics to cut in and for the loader to start reversing, Holgate's right leg was crushed between the loader and the chain bed conveyor at the premises; (f) when Newell reset the stop button, it allowed the loader to move forward because the forward/neutral/reverse controller was in the forward position with the hydraulic motor still running. (g) it was inherently dangerous that the forward/neutral/reverse controller could be left in a forward or reverse position so that when the stop button was reset, drive power was immediate; (h) the position of the stop button at the rear of the control consol made it easier to reset it before sitting down in the operator's seat rather that the operator sitting in the operator's seat before resetting it. (i) It is alleged that on 7 May 1999, the defendant supplied the loader to Namoi for use by persons at work with Namoi, and thereafter continued to fail to ensure that between about 27 July 1999 and about 30 July 1999 the plant was safe and without risks to health when properly used in that: (i) The forward/neutral/reverse controller could be left in a forward or reverse position so that when the stop button was reset, drive power was immediate; (ii) The electrical circuitry meant that when the stop button was activated there was no requirement that the forward/neutral/reverse controller had to be returned to neutral before allowing operation of the drive; (iii) The position of the stop button at the rear of the control consol made it easier to reset it before sitting down in the operator's seat rather than the operator sitting in the operator's seat before resetting it; (iv) There was no dead man switch that had to be activated when the operator sits in the operator's chair before the operation of the drive of the loader.

[39]

33 Arbor Products involved the prosecution of the manufacturer of a wood chipping machine and the supply of that machine to Yass Shire Council. The trial judge had, after a detailed analysis of the evidence, adopted (to use his Honour's words) an "holistic approach" to the application of s 18 and in particular, the requirement that plant supplied for the use at work must be safe "when properly used". In the majority judgment on appeal it was concluded that such an "holistic approach" to the application of s 18 was in error, observing: 36 We think, with respect, that the holistic approach adopted by Marks J was wrong. Such an approach has the potential to, and in this matter did, obscure or overshadow the central issue which, in our view, is whether the plant supplied for use at work was safe and without risks to health. If the answer to that is "no" then, prima facie , the supplier has committed an offence under s18(2)(a) of the Act. If the answer is in the affirmative but a person uses the plant improperly or in a manner for which it was not designed, then the supplier, if charged with an offence, may rely on the defence of "when properly used ". This is consistent with the view expressed by Fisher P in Callaghan v Theiss Contractors Pty Limited (unreported, Matter No. 1377 of 1989, 20 December 1990) where his Honour held that: Section 18(2)(a) which speaks of plant being safe and without risks to health when properly used still requires that the plant is to be "safe and without risks to health" which this compactor never was. It is only when the safe and risk free plant is not properly use (sic) that the proviso operates to assist the manufacturer. 37 The supplier of plant for use at work has a duty to "ensure" that it is "safe and without risks to health". In describing the duty imposed by s15(1) of the Act, the Full Bench in Drake Personnel at 449, stated : This Court and its predecessors have frequently emphasised the breadth of the duty imposed by s 15(1) of the OH&S Act: see, for example, WorkCover Authority of NSW (Inspector Piggott) v Capral Aluminium Ltd (1998) 82 IR 468 at 478 and WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. The duty imposed by s 15(1) on employers to ensure the health, safety and welfare at work of all their employees is an absolute duty. In Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 469-470, Watson J said: "I am satisfied that the legislative intention contained in the new Occupational Health and Safety Act 1983, is quite clear. Had the legislature intended to restate the common law obligations devolving on an employer to take reasonable care for the safety of his employees, it would have been open for it to have adopted wording such as that which appears in regulations under the Industrial Safety, Health and Welfare Act 1972 (SA), where in reg 4 the phraseology used is 'shall take all reasonable precautions to ensure' ( see Smith v Elliott Bros (1980) 26 SASR 138) ... In their context and purpose, there would appear to be no reason to make any implication that the words 'to ensure' are to be construed in any way other than their ordinary meaning of guaranteeing, securing or making certain." 38 We see no reason in construing the statute that the word "ensure" as it is used in s18(2)(a) should be given any different meaning to the same word in s15(1). 39 In Rice v Henley (1914) 19 CLR 19, Isaacs J commented at 22: In interpreting an Act which is directed to guarding against accidents and to the preservation of human life I think one should endeavour to carry out the objects of the legislature as far as the language of the Act will reasonably permit. 40 On its proper construction s18(2)(a) is not intended to provide protection to a supplier of plant which is unsafe or poses a risk to health by allowing, for example, a defence that unsafe plant was not used according to the supplier's operating manual or a defence that the unsafe plant was not "diligently" maintained (in circumstances where the supplier knew the machine was to be used for an inappropriate purpose). Such a construction would, in our view, be contrary to the purposes of the section and inconsistent with the objects of the Act. That construction is contrary to the evident purpose of s18 when considered as a whole and as conveyed by the context in which the provision appears; for example, the terms of s18(2)(b). It is inconsistent with the object of the Act, namely, "to secure the health, safety and welfare of persons at work". …

[44]

37 As initially enacted, s 18 of the Occupational Health and Safety Act was structured quite differently to its form in 1999 as set out in para [4] above. It is not necessary to set out the whole of the original section. It is sufficient to note that sub-section (2) of the former section became sub-section (1) of the new section. The initial sub-section (1) contained a number of definitions which were removed. The extended definition of "manufacture" to include "design" was rendered unnecessary by the inclusion in the new sub-section(1) of the verb "designs" before the verb "manufactures". The effect of the definitions previously set out in s 18(1) appears generally to have been incorporated in the text of the new sub-section (2). It is sufficient for the purpose of comparison to note the terms of the former s 18(2) which created the relevant offences. This sub-section provided: 18 Manufacturers, suppliers etc to ensure health and safety as regards plant and substances for use at work (1) ... (2) A person who manufactures or supplies any plant for use at work or any substance for use at work shall: (a) ensure that the plant or substance is safe and without risks to health when properly used; (b) carry out or arrange for the carrying out of such research, testing and examination as may be necessary for the purpose of the discovery and the elimination or minimisation of any risks to health or safety to which the plant or substance may give rise, and; (c) take such steps as are necessary to make available in connection with the use of the plant or substance at work adequate information: (i) about the use for which the plant is designed and about any conditions necessary to ensure that, when put to that use, the plant will be safe and without risks to health, or (ii) about the results of any relevant tests which have been carried out on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risks to health when properly used. ...

[50]

43 On the other hand, reference to the two forms of s 49 appears to indicate that the legislature perceived there were certain inappropriate gaps in the legislative scheme of the 1983 statute so far as limitation periods were concerned. Without attempting to state the relevant considerations exhaustively, the Parliament seems to have concluded that s 49, in its then form, was anomalous in at least two respects: first, the basis for a prosecution might not become available or plain until relevant coronial proceedings had concluded notwithstanding that the two year limitation period may have expired; second, there might be a lapse in time between the manufacture or supply of plant and its unsafe features or nature are revealed. In the latter situation, the two year limitation period may have expired before there was any identified or identifiable basis for the commencement of the prosecution, even in circumstances where the defect in safety led to a serious accident or injury at work. The "mischief" discerned was considered by Parliament as requiring correction; the term "mischief" being used in the sense associated with the well known principle of statutory interpretation which was the origin of the purposive approach to interpretation: see, for example, Pearce and Geddes Statutory Interpretation in Australia (Butterworths, Fifth Edition, 2001) pp 22 - 27, 56 - 57 in paras [2.5], [2.7] and [3.6]; Craies on Statute Law pp 96 - 98; Gifford Statutory Interpretation (Law Book Co, 1990) pp 43 - 48; s 33 of the Interpretation Act 1987; Heydon's Case (1584) 76 ER 637; Woolworths Ltd v Crotty (1942) 66 CLR 603 at 618; Union Trustee Co of Australia Ltd v Church of England Property Trust (1946) 46 SR (NSW) 298; Mills v Meeking (1990) 169 CLR 214 at 234 - 235 and CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. The last cited case, and other recent cases to similar effect, which provide that the mischief, which it may be discerned the amending statute was intended to remedy, may be seen as part of the context, in its widest sense. The modern approach to statutory interpretation requires that the context be considered in the first instance and not merely at some later stage when ambiguity might be thought to arise.

Forster v Osprey Manufacturing Pty Ltd

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Cases Cited (23)

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