Forster v Osprey Manufacturing Pty Ltd

PROSECUTOR Mr B G Docking of counsel Solicitors: Phillips Fox (Mr G Henderson)

LEGAL REPRESENTATIVES: DEFENDANT Mr J P Phillips of counsel Solicitors: Kennedy Spanner, Toowoomba, QLD Sydney agent: Shanahan Tudhope (Ms M Simpson)

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Matter No IRC 5058 of 2001 INSPECTOR JOHN FORSTER v OSPREY MANUFACTURING PTY LTD Prosecution under section 18(2)(a) of the Occupational Health and Safety Act 1983

1 This matter concerns an interlocutory issue in a prosecution brought pursuant to s 18(2)(a) of the Occupational Health and Safety Act 1983 by the prosecutor, Inspector John Foster, of the Workcover Authority of New South Wales. The defendant is Osprey Manufacturing Pty Ltd. The proceedings were commenced on 27 July 2001 by the prosecutor filing an application in accordance with r 217B of the Commission's rules for orders under s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967, as applied to this Court by s 168 of the Industrial Relations Act 1996.

2 The charge against the defendant was in the following terms: It is alleged that between about 27 July 1999 and 30 July 1999 the Defendant, Osprey Manufacturing Pty Ltd (ACN 069 062 684), being a manufacturer or supplier, or both, having supplied plant, namely, a loader known as "Hylander Infield Loader" ("the loader"), to the Namoi Cotton Co-Operative Ltd ("Namoi") for use by persons at work, and failed to ensure that the loader was safe and without risk to health when properly used; and the charge was particularised as follows:

(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.

3 The defendant has filed a notice of motion seeking the dismissal or the permanent stay of the proceedings, appropriate declarations and costs. The basis on which the relief was sought was essentially that the proceedings were brought out of time.

4 Section 18 of the Occupational Health and Safety Act 1983, at the time the offence was alleged to have occurred, was in these terms: 18. Designers, manufacturers and suppliers to ensure health and safety as regards plant and substances for use at work (1) A person who designs, manufactures or supplies any plant or substance for use by persons at work must: (a) ensure that the plant or substance is safe and without risks to health when properly used, and (b) provide, or arrange for the provision of, adequate information about the plant or substance to the persons to whom it is supplied to ensure its safe use. (2) The obligations under this section: (a) apply only if the plant or substance is designed, manufactured or supplied in the course of a trade, business or other undertaking (whether for profit or not), and (b) apply whether or not the plant or substance is exclusively designed, manufactured or supplied for use by persons at work, and (c) extend to the design, manufacture or supply of components for, or accessories to, any plant for use by persons at work, and (d) extend to the supply of the plant or substance by way of sale, transfer, lease or hire and whether as principal or agent, and (e) extend to the supply of the plant or substance to a person for the purpose of supply to others, and (f) do not apply to a person merely because the person supplies the plant or substance in the course of a business of financing the acquisition of the plant or substance by a customer from another person. (3) In this section, "manufacture" plant includes assemble, install or erect plant.

5 Section 49 of the Occupational Health and Safety Act made the following provisions as to the various times for instituting proceedings under that Act: 49. Time for instituting proceedings for offences (1) Notwithstanding anything in any other Act, proceedings for an offence against this Act or the regulations may be instituted within the period of 2 years after the act or omission alleged to constitute the offence. (2) Proceedings for an offence against section 18 (Manufacturers, suppliers etc to ensure health and safety as regards plant substances for use at work) may be instituted, despite subsection (1): (a) within 2 years after the act or omission alleged to constitute the offence, or (b) within 6 months after it first becomes apparent to the WorkCover Authority that the act or omission alleged to constitute the offence has occurred, whichever provides the longer time for proceedings to be instituted. (3) Proceedings for an offence against section 27 (Notification of accidents and other matters) may be instituted, despite subsection (1): (a) within 2 years after the act or omission alleged to constitute the offence, or (b) within 6 months after the WorkCover Authority first becomes aware of the act or omission alleged to constitute the offence, whichever provides the longer time for proceedings to be instituted. (4) If a coroner's inquest or inquiry is held and it appears from the coroner's report or proceedings at the inquest or inquiry that an offence has been committed against this Act or the regulations, proceedings in respect of that offence may be instituted, despite anything to the contrary in this section, within 2 years after the date the report was made or the inquest or inquiry was concluded, as the case may be.

6 Mr J P Phillips of counsel, who appeared for the defendant on the hearing of the motion, contended that the transaction alleged to have formed the foundation of the charges as particularised, was the sale of the loader to Namoi Cotton which was completed on 7 May 1999. Whilst it was conceivable that the word "supply" might carry the characterisation of a continuing offence in circumstances where the supply is by way of hire or lease, however, where the supply is by way of manufacture, design or sale, the relevant conduct is complete upon the conclusion of the relevant transaction. As such, the offence is not a continuing offence as alleged in the particulars of the charge.

7 On counsel's submission, the test for whether an offence is of a continuing nature, is whether the defendant can, at will, discontinue the alleged breach: see Sloggett v Adams (1953) 70 WN 206, Ellis v Ellis (1896) P 251 at 254, Bridge v Lindrum [1957] AR (NSW) 356, J Robins Sons Limited v Maloney [1934] AR (NSW) 155 and Burgess v Kaputar Timbers Pty Limited (1999) 91 IR 378. That was not the case here.

8 Reference was made to the observations in the joint judgment of O'Bryan and Gillard JJ in R v Industrial Appeals Court Ex parte Barelli's Bakeries Pty Limited (1965) VR 615 at 620, "if the obligation is continuous the breach, though constituting one crime only, continues day by day to be a crime until the obligation is performed". In that circumstance, as was observed by Pearlman CJ in Environmental Protection Authority v CSR Limited Trading as CSR Wood Panels [2001] NSWLEC 41 at [18], when dealing with a continuing offence, "the limitation period commenced to run from the day upon which the commission of the offence has ceased". On Mr Phillips submission, even if the sale took place over a period of time, once the sale was complete and title had passed, the relevant transaction had "ceased" and time would begin to run.

9 In the defendant's submissions in reply, Mr Phillips contended that the prosecutor's submission to the effect that an offence under s 18 "continues so long as the plant is in use by persons at work and is not safe" would render nugatory the limitation provided in s 49(2) of the Act. That section demonstrates, on the defendant's submission, that the legislature had paid particular attention to the limitation period for an offence under s 18, extending the normal two year limitation period so as to provide that the prosecutor has six months after becoming aware of a offence to commence proceedings for an offence of that nature.

10 It was submitted that the summons should be dismissed as the proceedings had been commenced well beyond the time limit provided for in s 49(2)(b), and several weeks outside the time limit provided by s 49(2)(a), having regard to the completion of the sale of the loader on 7 May 1999.

11 Mr B G Docking of counsel, who appeared for the prosecutor, conceded that the proceedings were not brought within the time provided in s 49(2)(b) of the Occupational Health and Safety Act. They were, however, within the time provided for in s 49(2)(a); that is, within two years of the act alleged to constitute the offence. On his submission, the relevant obligation imposed by s 18(1)(a) was a continuing one, resulting in an offence under that provision being a continuing offence.

12 The proper approach for determining whether a prosecution proceedings was brought within time was that stated by the Full Bench of this Court in McMillan Britton and Kell Pty Limited v WorkCover Authority of New South Wales (Inspector Blake) (1999) 89 IR 464 at 475, which required the identification, as a first step, of "the precise nature and scope of the offence created by [the relevant provision] … including the identification of the relevant act or omission alleged by the summons ... to constitute the offence". In this case, the obligation imposed by s 18(1)(a) does not consist merely in the design, manufacture or supply of the plant, but also the failure to ensure the plant is safe on a particular date. The offence continues so long as the plant is in use by the persons at work and is not safe. The offence is not necessarily complete when the plant of substance is designed, manufactured or supplied.

13 The general purposes of the statute are well understood: see Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 57 at [33]. The scope of the obligations imposed by the statute have been emphasised in numerous decisions: for example, Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467 at 469 - 470. There is no warrant for construing the word "ensure" in s 18 of the statute in a manner different to the way in which it is construed it elsewhere in the Act: see WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 at [38].

14 The test for establishing a continuing offence was stated by Street CJ in Sloggett v Adams (1953) 70 WN (NSW) 206 at 208 and has been adopted on numerous occasions: see Bridge v Lindrum [1957] AR (NSW) 356, Burgess v Kaputar Timbers Pty Limited (1999) 91 IR 378, Environment Protection Authority v Alkem Drums Pty Ltd (2000) 113 LGERA 130. The offence under s 18 consists of a failure to ensure that a particular state of affairs exists; that is, a failure to ensure that plant is safe and without risk to health when properly used. It is an offence that is "committed day by day so long as the state of affairs which is forbidden continues to exist": Slogget v Adams at 208.

15 In Mr Docking's submission, there was nothing in s 18 that would warrant the restrictive interpretation contended for by the defendant. The method of supply does not alter the nature of the offence. If the defendant believed that it was not reasonably practicable to ensure that plant was safe, it was open for it to rely on the defences under s 53 of the Occupational Health and Safety Act.

16 The prosecutor also submitted that the observations of Underwood J in Pearce v BHP Steel (AWI) Pty Ltd (1998) 85 IR 305 on the equivalent provisions in the Tasmanian Workplace Health and Safety Act 1995, were distinguishable. The obligation imposed by s 18(1)(a) of the Act by the Occupational Health and Safety Act 1983 imposed a "general obligation to ensure that plant was safe", and should be contrasted to the Tasmanian legislation. Counsel made similar submissions as to the South Australian legislation considered by the High Court in Slivak v Lurgi (Australia) Ltd (2001) 205 CLR 304.

17 Counsel referred, in an alternative submission, to the warranty which formed part of the sale transaction, contending that the relevant "supply" should not be seen as a "one-off" sale. The relevant transaction involved a sale of the loader together with a warranty associated with the condition of the loader for a period of 12 months. The contractual obligations of the defendant were not complete for some months following the delivery of and payment associated with the relevant loader. Whilst it was not contended that the defendant was actually required to do anything within the relevant warranty period, the fact that the relevant supply was on terms which included the provision of a warranty, demonstrate that the supply transaction was more than the sale of a particular item simpliciter. The relevant "supply" transaction, when seen in that way, and hence the time from which the time limit provided in s 49(2)(a) would run, was well within the two year limitation period provided in that section. The notice of motion should be dismissed.

18 The issue requiring determination on the defendant's motion is whether s 18 of the Occupational Health and Safety Act imposes a continuing obligation on a person who "designs, manufactures or supplies any plant or substance for use by persons at work". What is involved in the concept or notion of a continuing offence was identified in the majority judgment in R v Industrial Appeals Court; Ex parte Barelli's Bakeries Pty Ltd at 620 as follows: A continuous or continuing offence is a concept well known in the criminal law and is often used to describe two different kinds of crime. There is the crime which is constituted by conduct which goes on from day to day and which constitutes a separate and distinct offence each day the conduct continues. There is, on the other hand, the kind of conduct, generally of a passive character, which consists in the failure to perform a duty imposed by law. Such passive conduct may constitute a crime when first indulged in but if the obligation is continuous the breach though constituting one crime only continues day by day to be a crime until the obligation is performed. In such a case in measuring the period of limitation, if one is applicable, the right to lay an information is not barred if the breach has continued up to the day the information was laid or if the breach was cured before the information was laid, time counts from the day when the obligation was satisfied. The question whether an offence is of a continuing or a continuous nature generally arises in the case of statutory offences and the question is solved by ascertaining what is the precise nature of the offence.

19 The other judgment in Ex parte Barelli's Bakeries Pty Ltd was that of Smith J. His Honour's judgment was referred to with approval by Joske J in Brammer v Deery Hotels Pty Ltd (1974) 22 FLR 276 at 278 - 279. Smith J referred to relevant authorities, including judgments of the New South Wales Full Court and Industrial Commission and (as Joske J said) cogently set out the distinction between continuing and complete offences in this way ([1965] VR 615 at 623): The distinction is between, on the one hand, an offence which, once committed, is complete and concluded and exists only in the past, and, on the other hand, an offence constituted by a continuing breach of a duty to take action to put an end to a forbidden state of affairs, in this case that wages which have become payable under a determination are unpaid ...

20 As for identifying what "the precise nature of the offence" is in any given case, it is instructive to have regard to what was said in Sloggett v Adams. Street CJ held, at 208: The question whether the offence which has been committed is a continuing offence, or one which was committed once and for all at the specified time, depends upon consideration of the language of the Act in question. Some offences once committed are complete and concluded and exist only in the past. Other offences, however, are continuing offences and are committed day by day so long as the state of affairs which is forbidden continues to exist, and the person responsible for creating that state of affairs is liable day by day for those offences. The test, it seems to me, is one which was prescribed in Ellis v Ellis (1896) P 251 at 254 by Sir Francis Jeune , who said: The test whether an offence is to be treated in law as continuous is, I think, whether its gravamen is to be found in something which the offender can, at will, discontinue. Clancy J, at 209, added: It seems to me that a test as to whether an offence is a continuing one would be to enquire whether the offender could, at will, cease to offend.

21 The issue in these proceedings becomes in substance a question of the construction of the relevant statutory provision. The initial consideration must, therefore, be s 18(1) of the Occupational Health and Safety Act and the precise nature of the offence which it creates. It must, however, be accepted that the construction of s 18 is not without some difficulty. The difficulty arises largely because the obligation imposed by the relevant provision is positive in nature whereas offices created by statute are often expressed in a negative or prohibitive way. The offence under the section is committed when there is a failure to perform the positive duty imposed by the statute or failure to perform the duty in the way required by the statute. In the present case the breach alleged is essentially that the defendant a manufactured or supplied plant for use by persons at work without ensuring that the plant was safe and without risk to health when properly used. That is, the breach is constituted by the manufacture or (more likely in this case) the supply of the plant in the prohibited way or condition (without having ensured or without ensuring, etc). The terms of s 18(2) which contains extensions and limits to the liability imposed by s 18 confirm that this is, in general terms, the way in which the offence(s) under the section are to be described. Section 18(2) makes plain by its terms that the obligations imposed by s 18(1) are obligations relevantly as to supply and/or manufacture.

22 As was recently emphasised by the Full Bench in Re Club Employees (State) Award [2002] NSWIRComm 362 at [77], "the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute". There are two considerations which tell against the construction urged by the prosecutor. First, once the section is analysed to identify the offence or offences created, the language of the section itself appears inconsistent with the imposition of a continuing obligation. Second, if the construction of s 18 urged by the prosecutor were accepted, it would result in the limitation provision in s 49(2)(b) having little practical operation.

23 Further, in so far as the latter provision gave, or was intended to give, any protection to a defendant in the sense of certainty as to its liability to prosecution, it would be largely illusory. Section 49(1) of the Occupational Health and Safety Act provides a general time limitation, requiring that "proceedings for an offence against this Act or the regulations may be instituted within the period of 2 years after the act or omission alleged to constitute the offence". Section 49(2) provides that: Proceedings for an offence against section 18 … may be instituted … (a) within 2 years after the act or omission alleged to constitute the offence, or (b) within 6 months after it first becomes apparent to the WorkCover Authority that the act or omission alleged to constitute the offence has occurred, ...

24 The limitation provided in s 49(2)(b) provides particular difficulties for the prosecutor's contention that s 18 creates a continuing offence. While it is possible to conceive of circumstances where s 49(2)(b) would have some scope for its operation, or "work to do," if the prosecutor's contentions were accepted, the words used in the provision seem to point to an intention to provide for, or create, two separate and distinct time limitations for offences under s 18; that is, two years after the relevant offence is committed, (as provided in s 49(2)(a)) or, within six months of the prosecutor becoming aware of the offence, without any regard necessarily to the time when the offence was committed (as provided in s 49(2)(b)).

25 When approached in that way, it seems plain that the legislature has had specific regard to the nature of an offence under s 18 and determined or assumed that the offence was not a continuing offence. The contention of the defendant that s 49(2)(b) would have been otiose if an offence under s 18 was of a continuing nature, should be substantially accepted. 26 Turning then to the substantive offence created by s 18(1), that provision imposes the obligation on a person who designs, manufactures or supplies "any plant or substance" to "ensure that the plant or substance is safe and without risks to health when properly used" and to "provide, or arrange for the provision of, adequate information about the plant or substance to the persons to whom it is supplied to ensure its safe use".

27 The ultimate obligation under s 18 arises from the culmination of a series of "sub-obligations". The obligation imposed by that provision, in terms, on the relevant designer, manufacturer or supplier, is to "ensure" that relevant plant or equipment meets certain conditions; namely, that it is "safe and without risks to health when properly used". Section 18(1)(b) imposes an obligation to "provide, or arrange for the provision of, adequate information about the plant or substance to the persons to whom it is supplied to ensure its safe use". That the obligation imposed by s 18(1)(a) and (b) is to ensure that "the plant or substance" is safe and that the relevant information is made available when "it is supplied" etc, impacts on the nature of the essential or ultimate obligation under the section and thus the nature of the offence created by it. The obligation attaches itself to, or arises from, the relevant transaction or "supply" of the relevant plant or equipment. An important element in determining the nature of the obligation, is to determine what is intended by the use of the term "supply".

28 It is instructive to examine the provisions of s 18(2) and in particular subsections (c) to (f), which provide that the obligation extends to "the design, manufacture or supply of components for, or accessories to, any plant", the supply "by way of sale, transfer, lease or hire and whether as principal or agent", the "supply … for the purpose of supply to others" and is expressed not to be applicable to "a person merely because the person supplies the plant or substance in the course of a business of financing the acquisition of the plant or substance by a customer from another person". Each of these items is more consistent with construing the term "supply" as an individual transaction, rather than as creating some continuing and ongoing relationship between the supplier and the client. This is also consistent with the ordinary English usage of the term "supply" which is defined, for example, in The Macquarie Dictionary (Third Edition, 1997) at p 2127 in the following ways: ... to furnish or provide (something wanting or requisite) ... to make up (a deficiency); ... to satisfy (a need, demand etc) ... to fill (a place, vacancy, etc); ... See also The Shorter Oxford English Dictionary (Third Edition, 1984 Revision) p 2196.

29 There is nothing in the terms of the section, or in the context in which it appears, which would warrant a different or alternative construction of the word "supply". The section imposes an obligation at the time the relevant "supply" occurs, and consequently, the obligation is complete or completed when the supply occurs. While the reference to supply "by way of sale, transfer, lease or hire" may require a determination, as a matter of fact, as to when the relevant transaction occurs and when, in relation to the transaction, the act or fact of supply or "supplying" occurs (and is complete) those issues do not appear to have any present significance.

30 In the present case, where the circumstances involve the outright sale of the loader (the relevant piece of plant) the "supply" would appear to be concluded, or completed at the time the particular designer, manufacturer or supplier actually supplied the relevant plant. This would usually be at the time of the actual, in the sense of physical, delivery of the plant but could conceivably occur when the title passed, if that occurred subsequent to physical delivery. As was conceded by the prosecutor, it is unnecessary to determine exactly at what point the title in the loader passed to Namoi Cotton as, on any view, were the prosecutor to fail on his construction argument, and leaving aside at this point the warranty issue, the proceedings would be out of time.

31 Turning to the prosecutor's alternative argument (that is, that the "supply" in this case was not merely the sale of the loader, but included a warranty as to the condition of the item for a period of 12 months), whilst there is an outstanding factual issue as to whether there was in fact such a warranty, it is not a matter which requires resolution. In my view, the relevant act or fact of "supply" is not to be seen as being extended for the period of the warranty, so as to lead to the situation that the two year period of time identified in s 49(2)(a) would commence to run from the end of the warranty period.

32 The prosecutor sought to draw some support for his construction of s 18 from the judgment of the Full Bench in Workcover Authority of New South Wales (Inspector Mulder) v Arbor Products (Australia) Pty Ltd. That decision considered the construction of s 18(2)(a) of the Occupational Health and Safety Act as it appeared before the amendment of s 18 by the Occupational Health and Safety Amendment Act 1997. As the Full Bench observed in National Hire Pty Limited v Howard [2003] NSWIRComm 144, the offence created by s 18(2)(a) was equivalent, in general terms, to the offence created by s 18(1)(a) after the 1997 amendment.

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". …

43 As to the qualification in s18(2)(a) arising from the phrase "when properly used", we conclude that the qualification is intended to limit liability of a supplier where the plant which is supplied is safe (in the sense that the safety is ensured) but such plant becomes unsafe because of misuse (for example, the wilful misuse of a machine by removal of a guard). It was plainly not the intention of the legislature to allow, by the use of that phrase, a limitation in the obligations arising under the sub-section where the defendant had, for example, provided an instruction manual or advice on how to use the plant supplied or had provided training for employees in the proper use of the plant at work where the plant was unsafe. If this were the case, it would be open to manufacture and supply plant for use at work that was not safe and posed risks to health. A supplier could simply argue on a prosecution under s18(2)(a) that, notwithstanding the plant supplied was inherently unsafe, an instruction manual was issued on how to properly use the plant and, consequently, no liability arose. In reaching this conclusion we have accepted the appellant's submission that the duty that arises under s18(2)(a) cannot be intended to have been circumscribed in the way contended for by the respondent and accepted by his Honour at first instance. 44 In our opinion, the machine in question was inherently unsafe. …

34 The majority judgment in Arbor Products emphasised that: The duty to provide a risk-free work environment is a duty owed not only to the careful and observant employee but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that is reasonably foreseeable. It was concluded that it was not open to a supplier to provide an inherently unsafe machine and then rely on instructions provided for the proposition that the machine was safe when properly used. Reference was made to the approach in Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143, WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 and WorkCover Authority of NSW (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 which concerned proceedings as to other provisions of the Occupational Health and Safety Act . The majority decision in Arbor Products was recently accepted as correct by the Full Bench in National Hire Pty Ltd v Howard .

35 The prosecutor concluded that the majority judgment in Arbor Products emphasised that the word "ensure" in s 18 was to be construed as it had been construed in judgments concerning s 15 and s 16 of the statute: for example, Carrington Slipways Pty Ltd v Callaghan. While that argument is correct so far as it goes, it begs the question of precisely what is the obligation that the relevant manufacturer, supplier etc must "ensure" is met. I do not consider there is any basis in Arbor Products that would warrant the conclusion that s 18 was intended to impose a continuing obligation to ensure that a relevant item of plant or equipment was safe and without risks to health. Nor, as earlier observed, does the actual language of s 18 either require or permit that conclusion which, in any event, would be most unlikely because it would lead, in practice, to the most unlikely situation that a supplier would have a continuing legal obligation, breach of which would be a criminal offence, although the supplier in fulfilling the obligation would inevitably be obliged to attend physically, through its servants and agents, upon the plant at the customer's premises and place of business although the supplier would not have any legal right to enter or stay on the premises or to require the customer to permit it (that is, the supplier) to do so. It is not to be assumed that Parliament would have intended to have created such an impractical or unlikely situation: cf Cooper Brookes (Wollongong) Pty Limited v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 320 - 321.

36 The issues raised on the motion have thus far been considered by reference to the legislative provisions in force in 1999 when the accident occurred which led to the commencement of this prosecution. However, there are a number of legislative changes that also require consideration. They fall into two categories. First, those amendments which were made to ss 18 and 49 prior to the alleged offence occurring and prior to the commencement of the proceedings: to ascertain whether reference to the history of those provisions affects or confirms the conclusions otherwise reached. Second, the repeal and replacement of the Occupational Health and Safety Act 1983 in 2001: to assess their relevance and effect. I deal initially the amendments to ss 18 and 49.

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. ...

38 The two legislative amendments which occurred to s 18 were made by the Workcover Legislation Amendment Act 1995 and by the Occupational Health and Safety Amendment Act 1997. The 1995 amendment resulted in the word "transfer," being inserted after the word "sale," in the definition of "supply" in section 18 (1). The 1997 amendment resulted in the replacement of the whole of the section.

39 The Attorney General and Minister for Industrial Relations, in introducing the 1997 Bill, made the following observations on the replacement of s 18 (Hansard, Legislative Council, 14 May 1997 at p 8501): The bill simplifies safety obligations on designers, manufacturers and suppliers and expresses them in the light of the national plant standard published by Worksafe Australia, which is to be adapted into regulatory form as part of the consolidation process. The new provision does not change the substance of the existing obligations but, rather, makes them easier to understand, comply with and enforce. (emphasis added)

40 Section 49 of the Occupational Health and Safety Act when initially enacted, was in the following terms: Notwithstanding anything in any other Act, proceedings for an offence against this Act or the regulations may be instituted within the period of 2 years after the act or omission alleged to constitute the offence. The section was amended by the Workcover Legislation Amendment Act 1995 which made the former section into the first sub-section of the replacement provision and added the three additional sub-sections which resulted in s 49 in the form set out in para [5] above.

41 While the amendment to s 49 was not referred to in the Minister's Second Reading Speech, the explanatory memorandum to the 1995 Bill contained the following reference to it: The following amendments are made: … (i) The time limits for instituting proceedings against the Act or the regulations are extended in certain circumstances.

42 The history of these provisions and the comparison of their various forms between 1983 and 1997 confirm the conclusions reached. There is nothing in the original form of s 18 or which arises from a comparison of its initial form and the form of s 18 after the 1997 amendment that would lead to the conclusion that s 18 was intended to create a continuing offence.

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.

44 Reference to the "mischief" approach to interpretation in this case is useful in showing, or assisting to show, the purpose and intention of the legislature in amending the provision. The mischief sought to be remedied and the purpose of the amendment are plainly shown by the comparison of the two forms of s 49 and also by the text of the 1995 explanatory memorandum. The mischief was that, in certain circumstances the terms and, perhaps, the strictures, of s 49 may have made it impossible in certain circumstances, or unlikely in others, for proceedings for breach of the statute to be commenced within the single limitation period specified. The purpose was to remedy the mischief by extending the period of limitation in certain defined circumstances. So far as offences under s 18 are concerned, it is unlikely the amendment would have been necessary if the section, on its proper construction, created a continuing offence. That factor lends support to the conclusions earlier reached.

45 Up to this point the motion has been dealt with in terms of the way it was argued by the parties. That is, it has been considered by reference to the provision of the Occupational Health and Safety Act 1983, particularly s 18 and s 49 thereof. However, although these proceedings were commenced on 27 July 2001 when the prosecutor filed the application for an order under s 4 of the Supreme Court (Summary Jurisdiction) Act, the proceedings are governed, at least in part, by the terms of the Occupational Health and Safety Act 2000.

46 Although the 2000 statute did not commence operation until 1 September 2001 (New South Wales Government Gazette, 24 August 2001, p 6186), Schedule 3 thereof (entitled "Savings transitional and other provisions") contains provisions for dealing with proceedings such as the present prosecution which was already on foot. The Schedule includes Part 2 which is entitled "Provisions consequent on enactment of this Act". That Part contains cl 13 which provides: 13 Criminal and other proceedings for offences under former Act

(1) Part 7 (Criminal and other proceedings) extends (subject to this clause) to proceedings in connection with the former Act in respect of offences committed against the former Act before its repeal or in respect of any related matter that continues to have force or effect. (2) This clause applies whether any such proceedings are pending on the repeal of the former Act or whether the proceedings are instituted after that repeal. (3) Part 7 applies with such modifications as are prescribed by the regulations or as are necessary for the purposes of applying that Part to any such proceedings. (4) Division 3 of Part 7 does not authorise any such proceedings against the Crown or any agent of the Crown if those proceedings would not have been authorised under the former Act. (5) In this clause, "former Act" includes any Act or provision of an Act that is repealed by this Act.

47 Clause 13 results in the application of Part 7 of the 2000 statute to proceedings under the 1983 statute (cl 13(1)) and requires that Part 7 to apply even if the proceedings:

(a) have commenced prior to repeal of the 1983 Act; (b) are instituted after the repeal (cl 13(2)).

48 Part 7 of the 2000 statute includes ss 105 to 131. The first Division of Part 7 comprises ss 105 to 110 and is entitled "Proceedings for offences generally". Section 107 is entitled "Time for instituting proceedings offences" and provides: (1) Proceedings for an offence against this Act or the regulations may be instituted within the period of 2 years after the act or omission alleged to constitute the offence, except as otherwise provided by this section. (2) This subsection applies to an offence against section 11 (Duties of designers, manufacturers and suppliers of plant and substances for use at work) or section 86 (Notification of accidents and other matters). Proceedings for any such offence may be instituted: (a) within 6 months after WorkCover first becomes aware of the act or omission alleged to constitute the offence, or (b) within 2 years after the act or omission alleged to constitute the offence, whichever provides the longer period to institute proceedings. (3) If a coronial inquest or inquiry is held and it appears from the coroner's report or proceedings at the inquest or inquiry that an offence has been committed against this Act or the regulations (whether or not the offender is identified), proceedings in respect of that offence may be instituted within 2 years after the date the report was made or the inquest or inquiry was concluded. (4) This section applies despite anything in any other Act.

49 Although s 107(2) refers to offences against s 11 (Duties of designers, manufacturers etc) of the 2000 statute and not s 18 of the 1983 Act I do not consider the reference affects the plain terms of cl 13. Section 107(2) thus applies to the present proceedings and not s 49(2) of the earlier Act. Although s 107 in its drafting shows some re-wording and rearrangement of the earlier section I do not consider that the terms or structure of the new provision produces any different result in these proceedings to that reached by consideration of s 49 of the 1983 statute.

50 The prosecutor accepted (correctly in my view) that the six month time limit provided in s 49(2)(b) for the commencement proceedings was not relevant. Specific reliance was placed on s 49(2)(a) as providing the relevant limitation period. See now s 107(2)(a) and s 107(2)(b) respectively of the 2000 Act. Having concluded that the offence created by s 18 is not a continuing offence, the offence the subject of the present charge occurred more than two years before the date on which the proceedings were commenced. The proceedings were therefore commenced outside the relevant limitation period. They are out of time and should be dismissed. The defendant is to have its costs of the proceedings.

1. The proceedings in Matter No IRC 5058 of 2001 are dismissed. 2. The prosecutor shall pay the defendant's costs of the proceedings. 3. The parties have liberty to apply for a specific sum to be fixed as to order number 2, provided such liberty is exercised within 28 days. ______________________________

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