Criminal law and procedure - Occupational Safety and Health Act 1984 s 19(7) and s 55 - Whether the penalty provision in s 19(7) or s 54 applied to a director

Occupational Safety and Health Act 1984, s 19(1), s 19(7), s 54 and s 55

Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226

Henry Walker Contracting Pty Ltd v Farnworth [2000] WASC 253

Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40

Leighton Contractors Pty Ltd v Ridge, unreported; SCt of WA (MillerJ); Library No 980650; 23 October 1998

Martin v The Queen, unreported; CCA SCt of WA (Ipp, Wallwork, Murray JJ); Library No 960180; 4 April 1996

Morrison v Hulme Wool Scouring Co (1938) Pty Ltd, unreported; SCt of WA (Commissioner Ng); Library No 930457; 6 August 1993

R v Australian Char Pty Ltd (1995) 79 A Crim R 427

Rice v Henley [1914] HCA 75; (1914) 19 CLR 19

Wasley v Green, unreported; SCt of WA (Murray J); Library No 940380; 28 July 1994

1 PULLIN J: The appellants appeal against decisions made by Mr Roberts SM on 19 March 2002 and 28 March 2002.

2 In the hearing below, the prosecution proved that on 12 January 2002 an accident occurred on the construction site of a tavern which was being erected at the corner of Wright Street and Knutsford Avenue in Cloverdale. The second appellant, Mr Crawford, a director of the first appellant, Go-Crete Pty Ltd ("Go-Crete"), and a Mr Meehan, an employee of Go-Crete, with others, began to move a pre-cast concrete panel to a position adjacent to Knutsford Avenue by using a stationary crane operated by a Mr M Hofmeyer. When the panel was being moved into position, it was being held by Mr Crawford and Mr Meehan, and the chains attached to the boom of the crane came into contact with, or very close proximity to, overhead power lines which were directly above the footing onto which the panel was to be erected. Both Mr Crawford and Mr Meehan received an electric shock. Mr Meehan died as a result.

"Being an employer, failed to provide and maintain, so far as was practicable, a working environment in which its employees were not exposed to hazards and by that failure caused the death of an employee; contrary to sections 19(1) and 19(7) of the Occupational Safety and Health Act 1984."

"Was a director of a body corporate when that body corporate was guilty of an offence under the Occupational Safety and Health Act 1984 when that offence was attributable to his neglect; contrary to sections 19(1), 19(7) and 55 of the Act."

5 I will repeat the matters which the Magistrate stated to be common ground at the hearing below.

"(i) In 1999 Avon Homes, a company, had been contracted to build the tavern at 'the site'. Mr C. Alio was a director of that company and a registered builder.

(ii) In early December 1999 Avon Homes contracted with Go Crete Pty Ltd (hereinafter called 'Go Crete') to supply, lay and erect footings, ground slab and pre-cast panels for the tavern. The defendant, Mr. Crawford, was a director of 'Go Crete' and the supervisor for the contracted work at 'the site'.

(iii) On the 15 December 1999 Mr. Crawford spoke with Mr. T Daly, an employee of Midland Crane Services, (hereinafter called 'Midland') about hiring a crane and operator to lift and place pre-cast concrete panels at various points on 'the site'. Both Crawford and Daly inspected the site and were aware that there were electricity cables suspended from poles which ran down the adjacent sides of 'the site', viz., on Knutsford Avenue and Wright Street.

(iv) Near the portico area close to boundary of Knutsford Avenue were 3 separate sets of overhead conductors which carried high voltage (a) 12.7 kV, (b) 240 Volts Blue phase and (c) a 240 volt street light cable belonging to the Western Power Corporation (hereinafter called 'Western Power')

(v) On the 16 December 1999 Mr Daly caused an application to be sent to the 'Western Power' to permit work over or close to overhead live conductors on 21 December 1999. The request stated the work address was 'Knutsford Avenue, Belmont' and that the work was 'near L.V. wires'. On the same day approval was given by 'Western Power' for the work on certain conditions, viz 'all care and caution to be taken' and 'The minimum clearance to be maintained is 3 metres.'

(vi) On the 21 December 1999 a 'Midland' crane operated by Mr. Hofmeyer arrived on 'the site' to lift panels and the work was done without incident and the majority of 30 panels were erected. The crane then left 'the site'.

(vii) On the 10th January 2000 Mr. Crawford arranged with Mr. Daly for the crane and Hofmeyer to return to 'the site' to erect the remaining panels. No further permit from 'Western Power' was sought

(viii) On the 12th January 2000 the crane and Mr. Hofmeyer returned to 'the site' where Mr. Crawford, Mr Toni Meehan, a rigger, and Mr. Bartler and Mr. Wilde, both labourers, were present.

(ix) At about 6.00 am a decision was made to shift a pre-cast panel 'PIO' into its position for the portico. The overhead power lines were directly above the concrete footing on which 'PIO' was to rest.

(x) The panel was lifted by the crane from the ground and moved at walking pace towards the footing. Mr. Meehan was giving directions to Mr. Hofmeyer by hand signals as to the direction in which the panel was to go. During the progress it was then ascertained that it was facing the wrong way and needed to be revolved.

(xi) When it became stationary about 3 metres from the footing the panel was revolved. It was then moved further towards the footing with Mr. Crawford and Mr. Meehan holding it so as to steady it.

(xii) When the panel was about 800 mm from its intended resting place the lifting chains on the crane came in close proximity to the red phase 12.7 KV conductor. Both Mr. Crawford and Mr. Meehan received an electric shock the result of which caused the latter's death.

(xiii) A visual inspection of the lifting chains showed high voltage burn marks as did one of the two wire slings.

(xiv) The lifting chains were attached at one end to the crane hook and at the other to two pulley blocks. Wire rope slings ran through the pulley block and were bolted to the panel.

(xv) From the method of attaching the slings to the panel to place the base of the panel in its position on the 'footing' the lifting chains had to be 1400 mm into space directly below the red phase and to achieve that the chains had to contact the red phase conductor."

6 His Worship found that it was the duty of Go-Crete to:

"(1) To ascertain the position of the overhead conductors adjacent to the site.

(2) To ascertain the various voltages of power being conducted on the three sets of overhead conductors..

(3) To ascertain whether the extended boom of the cranes with its attachments on lifting the portico panel would touch the overhead conductors.

(4) To submit an application to 'Western Power' with the complete details of the location of the site and not merely 'Knutsford Avenue, Belmont'.

(5) To submit an application to 'Western Power' on each day the crane was to be used to lift and place the panels.

(6) To ensure the appropriate permit had been obtained from 'Western Power'.

(7) To inform the crane operator on the 12th January 2000 that the crane was lifting the panel in close proximity to the overhead conductors."

"In my view the defendants failed, during the erection of concrete panels at 'the site' to ensure that a panel and a crane used to erect the panel did not contact or come into proximity with live overhead conductors thereby exposing employees holding the panel to the hazard of electric shock.

I find as a fact that when the panel was about 800 mm from its intended resting place the lifting chains on the crane came in contact with the red phase 12.7 KV conductor. Both Mr. Crawford and Mr. Meehan received an electric shock the result of which caused the latter's death

It was practicable for the Defendant to have erected the panel and ensured that the panel and the crane would not contact or come into proximity with live overhead conductors. Western Power could have simply been asked to switch off the overhead conductors.

I find as a fact that Mr. Crawfords' duties as a director of 'Go-Crete' was to manage the erection of the panels at 'the site' by engaging 'Midland' to supply the crane and its operator, organising 'Midland' to obtain the permit from 'Western Power' and directing Mr. Meehan where all of the panels were to be placed around 'the site'. He was the director responsible for carrying out the duties of the company as outlined above. He ought to have known the contents of the document of the 18th May 1998 titled 'Requirements for Contractors Vehicles and Plant from Live Conductors' published by 'Western Power'. He failed to ensure the crane would not contact or come into proximity with the live overhead conductors."

8 The Magistrate published his reasons for decision and made them available to the parties. On 19 March 2002, during submissions about penalty, the following exchange occurred between Mr McGowan, appearing for the appellants, and his Worship:

"MR McGOWAN: Your Worship. Can I begin by first clarifying, with respect, whether your Worship has made a formal finding in accordance with the provisions of section 19(7) that the breach, as found, caused the death of Mr Meahan which is a separate element which is required for the purpose of a finding under 19(7). As your Worship is aware, if that's not the finding then we're dealing with 19(6).

HIS WORSHIP: I think at page 11 of my decision, in the third paragraph, I said, 'Mr Meahan received an electric shock. The result caused the latter's death.'

MR McGOWAN: I appreciate that, your Worship, but what I was seeking to ascertain is whether you have made a finding as required under 19(7) which is a finding that it's the contravention of section 19(1) that causes the death of Mr Meahan and not merely the physical act.

HIS WORSHIP: I would make that finding, yes, Mr McGowan."

9 On 28 March 2002, the Magistrate fined the first appellant $40,000 and Mr Crawford $25,000.

10 In this appeal, the appellants do not challenge the finding that Go-Crete contravened s 19(1) of the Act.

11 Go-Crete appeals on the sole ground that the contravention of s 19(1) of the Occupational Safety and Health Act 1984 (the "Act") did not cause the death of the employee Mr Meehan, and that it did not therefore commit an offence against s 19(7) of the Act.

12 It is Go-Crete's submission that it was the rotation of the panel which brought it into close proximity to power lines and that caused the death of Meehan.

13 In my view, that ground of appeal should be dismissed. Section 19(1) of the Act provides:

"(1) An employer shall, so far as is practicable, provide and maintain a working environment in which his 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, his employees are not exposed to hazards;

(b) provide such information, instruction, and training to, and supervision of, his 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 co-operate with safety and health representatives, if any, and other employees at his 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 his employees with, or otherwise provide for his 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 his employees are not exposed to hazards."

14 Section 19(6) and 19(7) provides:

"(6) An employer who contravenes subsection (1) commits an offence and is liable to a fine of $100 000.

(7) An employer who contravenes subsection (1) and by that contravention causes the death of, or serious harm to, an employee commits an offence and is liable to a fine of $200 000."

15 In Campbell v The Queen [1981] WAR 286 at 290, Burt CJ, when speaking about what direction should be given to juries about causation, said:

"... the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them they appreciating that the purpose of the enquiry is to attribute legal responsibility in a criminal matter."

16 Burt CJ was there relying on what was said by Windeyer J in National Insurance Co of New Zealand Ltd v Espagne [1961] HCA 15; (1961) 105 CLR 569 at 591. See also Royall v The Queen [1991] HCA 27; (1990) 172 CLR 378 and March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506.

17 It does not matter if in this case there was more than one cause of death. It is a misapplication of principle to attempt a search for a principal cause of death. R v Moffatt [2000] NSWCCA 174; (2000) 112 A Crim R 201. The relevant act or omission must be more than a coincidental or insignificant effect: Moffatt (supra) at 213 and Campbell v The Queen (supra) at 290.

18 In this case, the particulars of the charge against Go-Crete were that:

"The Defendant failed, during the erection of concrete panels at a construction site at 174 Wright Street, Cloverdale, to ensure that a panel and a crane used to erect the panel did not contact or come into proximity with overhead power lines thereby exposing employees holding the panel to the hazard of electric shock."

"It was practicable for the Defendant not to have erected the panel without having ensured that the panel and the crane would not contact or come into proximity with the overhead power lines."

20 It is accepted by Go-Crete that it contravened s 19(1) as alleged. That failure exposed Mr Meehan to a hazard, namely electric shock, and because Go-Crete failed to ensure that the panel and crane did not come into contact, or into proximity, with the power lines, Mr Meehan was electrocuted. As a matter of common sense, the contravention of Go-Crete of s 19(1) gave rise to the hazard that killed Mr Meehan, and so in terms of s 19(7) of the Act, Go-Crete was an employer which, by its contravention of s 19(1), caused the death of an employee. The argument that the rotation of the panel by the crane driver was the cause of Mr Meehan's death, is an attempt to isolate the ultimate cause of death. That is not the correct approach.

21 For those reasons, I dismiss the appeal by the first appellant.

22 There was a ground of appeal complaining about the Magistrate's reasons for decision, but that was abandoned.

23 That leaves the appeal by the second appellant, Mr Crawford, which complains that the Magistrate was wrong to conclude that the penalty applicable to him was that to be found in s 19(7) of the Act.

24 To understand this submission, I refer first to s 55(1) of the Act, which reads:

"(1) Where a body corporate is guilty of an offence under this Act and it is proved that the offence occurred with the consent or connivance of, or was attributable to any neglect on the part of, any director, manager, secretary or other officer of the body, or any person who was purporting to act in any such capacity he, as well as the body corporate, is guilty of that offence."

25 This section was relied on in the charge against Mr Crawford which I have set out at the beginning of these reasons. It is submitted on behalf of Mr Crawford that s 19(7) has two components to it. The first component provides that an employer who contravenes s 19(1) and by that contravention causes a death of an employee, commits an offence. The second component provides that an employer who commits such an offence, is liable to a fine of $200,000.

26 The submission on behalf of Mr Crawford is that the relevant penalty provision in this case in relation to him is s 54 of the Act, which reads:

"A person who commits an offence against this Act is liable, if a penalty is not expressly provided for that offence 

(a) where the offence is committed by a person as an employee, to a fine of $5 000; and

(b) in any other case, to a fine of $25 000."

27 I should mention before passing on to the real point of this part of the appeal that according to counsel for Mr Crawford, the only evidence about Mr Crawford's relationship with Go-Crete was that he was a director. There was no evidence that he satisfied the definition of "employee" in the Act; meaning a person by whom work is done under a contract of employment or a person who is an apprentice or industrial trainee. Thus, if s 54 applies, it is s 54(b) rather than subsection (a) which applies.

28 The issue joined between the two parties is whether Mr Crawford was liable to the penalty provided for in s 19(7) - a maximum of $200,000 - or to a penalty under s 54(b) - a maximum of $25,000. The Magistrate imposed a fine of $25,000. He considered that the relevant penalty provision was in s 19(7). He said:

"It is clear, under section 17 (sic), that a penalty is certainly provided for the offence against an employer who contravenes the section and the maximum of course is $200,000. Under section 55 of the act, the director Mr Crawford is deemed to be guilty of that offence, that is, the offence under section 19(1) and, as subsection (7) particular provides for a penalty, in my view, the general provisions under section 54 do not apply in the case of Mr Crawford."

29 I assume that the reference to s 17 in the first line of the above quotation above should be a reference to s 19(7).

30 Mr Crawford submits that he must accept, by reason of s 55, he is guilty of the offence specified in s 19(7). However, he also submits that the part of s 19(7) referring to penalty imposes the penalty only on an employer. Go-Crete, and not Mr Crawford, was the employer of the deceased person. Mr Crawford therefore submits that the penalty provision in s 19(7) does not apply to him, which means there is no penalty expressly provided for the offence he has committed, and therefore s 54 applies.

31 Now it is clear that there are some unsatisfactory aspects of the interaction between s 55(1) and s 19(7). As Mr Crawford submits, Go-Crete was the employer, not Mr Crawford. Therefore, when s 55(1) says that a director is guilty of "that" offence "as well as the body corporate", and when s 55 is referring to s 19(7) as it does in this case, it suggests that Mr Crawford was under the duty of an employer under s 19(1) not to expose employees to hazards, has contravened that provision, and, as an employer contravening that provision, has caused the death of an employee. It is submitted that such reasoning does violence to the facts in this case because Mr Crawford was not the employer of Mr Meehan. So perhaps the reference to the director committing "that" offence is a reference in this case only to the circumstances giving rise to the offence by the employer. The appellants' argument therefore suggests that s 55 is ambiguous in its application to s 19(7). If s 55 had said that where a body corporate is guilty of an offence under the Act and that the offence was attributable to neglect on the part of a director, the director is also guilty of an offence and liable to the same penalty as the body corporate, then there would have been no ambiguity. Alternatively, if s 55 had said that if an offence by a body corporate employer was attributable to the neglect of a director, then the director was to be deemed to be the employer and liable to the same penalty as the employer, then there would have been no ambiguity. Section 55 has not, however, been expressed in either of these ways by Parliament, and I must therefore make sense of the section as it stands. If s 55 is ambiguous, then it would be necessary to turn to the principles which must be applied to resolve ambiguity.

32 Section 18 of the Interpretation Act 1984, requires the Court to adopt a construction that would promote the purpose or object underlying the legislation. Section 19 permits me to examine extrinsic material, including the Second Reading Speech. I was informed by counsel for the respondent that the Second Reading Speech says nothing which would assist in relation to s 55.

33 So far as the purpose or object of the Act is concerned, I refer to the long title to the Act, which reads that it is: "An Act to promote and improve standards for occupational safety and health ...". Section 5 states that the objects of the Act are to promote and secure the safety and health of persons at work, to protect persons at work against hazards, to reduce, eliminate and control the hazards to which persons are exposed at work. Consistent with the clear purpose of this legislation are provisions which make it clear that if a body corporate commits an offence, then those who manage or control it are to be as responsible as well as the body corporate. Taking into account those matters, it is apparent that the Act is one which is intended to require employers and managers to reduce, eliminate and control hazards to which employees might be exposed. Penal sanctions are provided to punish departure from obligations to establish and maintain safe working conditions. The High Court in Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156 referred to the legislation in that case - The Factories and Shops Act 1960 (Qld) - as being legislation concerned to further industrial safety. The High Court said it should be construed so as to give the fullest relief which the fair meaning of its language would allow (the relief there referred to was civil relief). The High Court noted that a breach of the provision under consideration there was attended with a penal sanction. Reference was made to the modern approach in construing penal statutes as stated by Gibbs J in Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569 at 576, where he said:

"The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences ... The rule is perhaps one of last resort."

34 The Court continued in Waugh v Kippen (supra) at 164-5:

"In the course of argument, the question arose whether the two principles of interpretation to which we have referred come into conflict in the present case and if so, how the conflict is to be resolved. If such a conflict was to arise, the court must proceed with its primary task of extracting the intention of the legislature from the fair meaning of words by which it has expressed that intention, remembering that it is a remedial measure passed for the protection of the worker. It should not be construed so strictly as to deprive the worker of the protection which Parliament intended that he should have: Harrison v National Coal Board (21), per Lord Porter; John Summers & Son Ltd. v. Frost (22), per Viscount Simonds; McCarthy v. Coldair Ltd. (23), per Denning L.J. In such a context the strict construction rule is indeed one of last resort. Furthermore, the process of construction must yield for all purposes a definitive statement of the incidence of an obligation imposed on the employer."

35 There is no question that the purpose of the sanctions in the Act under s 19 is to ensure compliance with duties imposed on employers for the safety of workers. The only issue here is about the level of the sanctions. The employer is primarily liable and is exposed to the substantial sanction of a fine of up to $200,000. The only question is whether the director whose conduct leads to the contravention by the body corporate employer should be exposed to the same penalty or a lesser penalty. Either way, Parliament is marking its disapproval of the conduct, and so an examination of the purpose of the legislation does not help solve any problem of ambiguity.

36 It therefore becomes a matter of construing s 55 by ascertaining the "fair meaning" of the words of s 55 to determine what was intended. In my view, the words make it clear that a human actor responsible for a body corporate contravening a provision of the Act, either by consent, connivance or conduct, is to be treated as guilty of the offence which he or she has caused the body corporate to commit. Thus, if it is proved that a body corporate commits an offence as a result of neglect on the part of a director, the director is guilty of the same offence as the body corporate. The human actor is to be equated with the body corporate, and the human actor is deemed to have committed the same offence as the body corporate. In the case of the application of s 55 to s 19(7), the human actor is to be equated not only with the body corporate but also the body corporate's status as employer. I say that because it can be observed that s 55(1) does not say that if the offence by the body corporate is attributable to neglect by its director, that the director is guilty of "an" offence. The provision quite definitely provides that he is guilty of "that" offence (ie the offence by the body corporate as employer) "as well as the body corporate".

37 The purpose of s 55 is therefore to treat the director as an employer because his conduct is the conduct which brings about the conviction of the body corporate employer. Section 55 operates in a similar way in relation to offences by body corporate manufacturers (see s 23) and body corporate controllers of work places (see s 22).

38 For those reasons, I consider that the learned Magistrate was correct to conclude that s 19(7) expressly provided for the penalty to be imposed in relation to Mr Crawford's conviction. Mr Crawford has been convicted of "that" offence, ie the offence of the employer. That being so, Mr Crawford was exposed to the penalty for "that" offence which is set out in s 19(7). As a result of the express provision for a penalty in s 19(7), s 54 had no application.