Inspector Anthony Nicholson (WorkCover Authority of New South Wales) v... [2009] NSWIRComm 98 | Case summary

FIRST AND SECOND DEFENDANTS: Mr B Tracey (Self-represented) LEGAL REPRESENTATIVES: THIRD DEFENDANT: Ms A Bryant, Solicitor Solicitors: HWL Ebsworth (Sonya Kroon)

1 The prosecution has applied to the Court to amend the Applications for Order (the charges) against each defendant. The charges all concern the same incident said to have occurred at Sydney on 5 January 2006. The "particulars" set out in the body of each charge are identical. For convenience, the charge in its original unamended form against Waco Kwikform is set out below: The defendant being an employer failed to ensure that people other than its employees, in particular Paul Hughes and William (Bill) Issell, were not exposed to risks to their health and safety arising from the conduct of its undertaking at its place of work contrary to section 8 subsection 2 of the 2000 Act. The particulars of the charge are: (a) at all material times the defendant was an employer; (b) at all material times the defendant was the supplier of scaffolding equipment and scaffold labour services for the demolition of a building located at 55 Sussex Street Sydney ("the site"); (c) on 5 January 2006 Paul Hughes and William Issell were working as scaffolders at the site performing scaffolding duties in particular the task of securing an electric winch to scaffolding; (d) the defendant: (i) failed to provide for use, or to ensure that there was provided and used, by the employees and others, plant, in particular a crane, gin wheel, materials hoist or other device, suitable for the task of lowering scaffolding components from heights; (ii) failed to ensure that there were no open penetrations through which employees or others could fall while they were working at heights; (iii) failed to provide for use, or to ensure that there was provided and used, by the employees or others, such personal protective equipment, in particular safety harnesses or other fall-arrest equipment, as was necessary to prevent falls from heights; (iv) failed to provide and maintain a safe system of work for the securing of an electric winch while it was being operated at height; (v) failed to provide or ensure the provision of adequate supervision as was necessary to prevent falls from heights; (vi) failed to provide or ensure the provision of such information, instruction and training so as to prevent falls from heights; (e) As a result of the abovementioned failures, Hughes and Issell were placed at risk of injury and Hughes received fatal injuries. 2 The amendment sought by the prosecution is to paragraph (d)(i), and is expressed as follows: [the defendant] failed to provide for use, or to ensure that there was provided and used, by employees and others, plant and systems of work suitable for the task of lowering scaffolding components from heights. 3 Waco Kwikform entered a plea of guilty to sub-paragraphs (d)(iii) and (d)(vi) of the charge. It opposed the amendment sought by the prosecution. Delta entered a plea of guilty to sub-paragraphs (d)(i) to (vi) in the amended charge. Bradley Tracey and Bradley Tracey Scaffolding Services each entered pleas of guilty to sub-paragraphs (d)(i) to (vi) in the original charges. Both defendants also opposed the amendment sought by the prosecutor to paragraph (d)(i). 4 None of the matters have been set down for hearing. 5 In written submissions the prosecution explained that the purpose of the proposed amendment was to precisely and fairly identify the defendants' alleged failures in failing to ensure the safety of relevant people who were at work on 5 January 2006. A further purpose was to place the defendants on notice about the case the prosecution intends to bring against them. The basis for the amendment was said to be found in s 170 of the Industrial Relations Act 1996. The section provides for amendments which the Court considers, "to be necessary in the interests of justice". (Section 168(3) of the Industrial Relations Act preserves the operation of s 170 in relation to criminal proceedings). 6 The prosecution emphasised that the proposed amendment to paragraph (d)(i) does not alter the legal elements of each charge or make each charge a new charge. Rather, it is an amendment to what has been described as the "essential factual particulars" of each offence. These essential factual particulars constitute each of the defendants' omissions as alleged and inform the defendants of what the prosecution will say about the facts at hearing. The amendment proposed will define with precision the alleged failure in respect of the use of plant and systems of work for the task of lowering scaffolding components from heights. The other "particulars" set out in paragraph (d) of each charge are alone, or in combination, matters relevant to the system of work adopted while persons were performing scaffolding work at the time, date and place alleged. The proposed amendment to paragraph (d)(i) makes it clear that the prosecution relies upon an omission in those terms. It is therefore irrelevant that the limitation period has expired. 7 In both oral submissions and written submissions in reply, the prosecution sought to rely upon s 16(2) of the Criminal Procedure Act 1986. The provision is in the nature of a Lord Jervis provision, which allows a court to disregard a defect (capable of remedy) or variance in a charge. The Court was invited to view the charge in its original form as containing a defect, being a failure to precisely and fairly specify an essential factual particular, namely, the manner of the offence. The Court was also invited to consider parts of the verifying affidavits each accompanying the original charges. Those affidavits under the heading "Failure to provide or ensure the provision of suitable plant" and "Failure to provide and maintain a safe system of work", effectively put the defendants on notice that the prosecution intends to rely on systems of work. There can therefore be no element of surprise or prejudice to the defendants arising from the form of the amendment. 8 In addition to these provisions the prosecution also placed reliance on ss 20 and 21 of the Criminal Procedure Act which provide that the Court may grant leave to the prosecution to amend an indictment. I note that under s 15(2) of the Criminal Procedure Act "an indictment" includes a court attendance notice, "or any process or document by which criminal proceedings are commenced". The latter formulation would bring the applications for order within the definition. 9 The contentions of Waco Kwikform on the issue, as I apprehended them, were, simply put, that since the acts or omissions alleged in paragraph d(i) to (vi) can be regarded as the legal elements of the offence, and not factual particulars, the proposed amendment constitutes an impermissible attempt to introduce a new legal element into the charge. The course proposed by the prosecutor is impermissible because of s 107 of the 2000 Act which requires that proceedings for an offence be instituted within two years after the act or omission said to constitute the offence. Any attempt by the prosecutor to introduce a new element into the charge is statute-barred under s 107, being an amendment sought after the expiration of the two year period. 10 It was not disputed by Waco Kwikform that the prosecution had elected to issue one charge against it with sub-paragraphs d(i) to (vi) setting out the alleged factors, "said to constitute the offence itself". According to Waco Kwikform the prosecution was entitled to proceed in this way under s 31(1) of the 2000 Act. Nevertheless, it was contended that if the amendment sought forms part of the essential legal elements of the charge then the effect of allowing the amendment is to create a new offence after the expiration of the statutory limitation period. 11 According to Waco Kwikform, its view of the proposed amendment receives support in the separate judgments of Hill J and Hungerford J in Boral Gas (NSW) Pty Ltd v Magill (1995) 58 IR 363. That decision considered s 15 and s 16(1) of the Occupational Health and Safety Act 1983, the precursor provisions to s 8(1) and s 8(2) respectively. With respect to s 15, Hill J (at 389) found that each act or omission said to constitute a failure specified in s 15(2) (or otherwise amount to a breach of the duty under that provision) was a separate offence (see also Hungerford J at 416). Waco Kwikform contended that that view was accepted by the majority in Newcastle Wallsend Coal Company Pty Ltd v WorkCover Authority (NSW) (Inspector McMartin) (2006) 159 IR 121. In oral submissions, Waco Kwikform emphasised that paragraph (d) contained six separate heads of acts or omissions, any one of which would be sufficient to find the offence proven. The amendment sought to paragraph (d)(i) however introduces a further act or omission which is a new legal element of the charge. 12 Both Mr Tracey and Bradley Tracey Scaffolding Services joined in the objection by Waco Kwikform to the proposed amendment and adopted Waco Kwikform's written and oral submissions on the issue. 13 In order to properly address the contentions of the parties on the issue it is necessary to consider the line of authority of which Boral Gas formed part, and the subsequent legislative amendments which were made in response to the majority judgments with regard to s 15 in that decision. It will then become necessary to consider whether within that particular judicial and legislative framework, the proposed amendment, if granted, does introduce a new legal element into the charge, which is statute-barred under s 107. 14 In Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 the Full Court (Fisher CJ, Cahill, Glynn JJ), in commentary on s 15 of the 1983 Act, said: Section 15(1) is a general provision establishing a far reaching obligation upon the employer and imposing a duty in absolute terms. Section 15(2) spells out with particularity the heads or particulars of that absolute duty without in any way cutting down its rigour. 15 The above passage was adopted and expanded upon in the Full Bench decision of State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 at 113 where it was said (McMahon DP, Hill and Hungerford JJ): Without prejudice to the generality of the duty cast on an employer by subs (1), subs (2) of s 15 then sets out the indicia of how an employer contravenes subs (1) by elaborating the general duties imposed by subs (1). It is clear, however, from Shannon v Comalco Aluminium (1986) 19 IR 358 at 359, that s 15(1) establishes a far reaching obligation upon an employer and imposes a duty in absolute (or strict) terms with s 15(2) spelling out the heads or particulars of that absolute duty but without in any way cutting down its rigour. Thus, an offence against s 15 is created under subs (1) thereof notwithstanding that an employer, in the particular case, may fail to carry out more than one of the duties referred to in subs (2); only one offence is committed by the employer, and that is pursuant to subs (1). 16 In Boral Gas, Fisher CJ (in the minority) came to the same view with regard to the constitution of s 15 of the 1983 Act. His Honour said (at 368): Section 15(1) is a general provision establishing a far reaching obligation upon the employer and imposing a duty in absolute terms. Section 15(2) spells out with particularity the heads or particulars of that absolute duty without in any way cutting down its rigour. A similar description is contained in State Rail Authority of New South Wales v Dawson . 17 Hill J in Boral Gas came to a contrary view. His Honour distinguished the earlier remarks made in Dawson (at 390): The respondent also relied upon the decision of the former Commission in Court Session ( McMahon DP, Hill and Hungerford JJ) in State Rail Authority of New South Wales v Dawson . That reliance, in my opinion, is misplaced. The issue in that case concerned the nature and limits of the strict or absolute duty cast upon any employer by s 15(1) of the Occupational Health Act . The question of whether only one offence was committed notwithstanding that several of the failures specified in s 15(2) may have been involved, was not argued and did not arise for determination. Nevertheless, the Commission observed in its decision at 113: "Without prejudice to the generality of the duty cast on an employer by subs (1), subs (2) of s 15 then sets out the indicia of how an employer contravenes subs (1) by elaborating the general duties imposed by subs (1). It is clear, however, from Shannon v Comalco Aluminium Limited (1986) 19 IR 358 at 359, that s 15(1) establishes a far reaching obligation upon an employer and imposes a duty in absolute (or strict) terms with s 15(2) spelling out the heads or particulars of that absolute duty but without in any way cutting down its rigour. Thus, an offence against s 15 is created under subs (1) thereof notwithstanding that an employer, in the particular case, may fail to carry out more than one of the duties referred to in subs (2); only one offence is committed by the employer, and that is pursuant to subs (1)." Even if the issues of ambiguity and duplicity or uncertainty had been raised and decided in that case, the decision, while highly persuasive, would not have been binding on this Court. As it stands, however, the relevant observation was merely obiter, and having now heard the question fully argued in this case, I have reached the conclusion that the relevant observation in that case, as a general or unqualified one, is not correct. 18 Hungerford J in Boral Gas distinguished the same passage in Dawson at 113. His Honour said of the passage (at 417): I do not consider the present point as to duplicity, not being in any event argued nor in issue in Dawson , was determined by what the Court Session there said. If it were necessary I would decline to follow Dawson on this aspect, but I think what was in fact relied upon from that case takes it out of context - in my reading of it, all Court Session was saying was that subs (1) created but one offence, with which I continue to agree, and that subs (2) indicated how and in what circumstances that single offence may be committed by the employer as an offence against subs (1) but not against subs (2). However, the decision did not deal, nor did it have to, with the vexed question of duplicity or uncertainty. 19 In Boral Gas, Hill and Hungerford JJ, in separate judgments, found that s 15(1) of the 1983 Act created one general duty and that each of the acts and omissions specified in s 15(2) constituted separate offences under the provision. In case there be some doubt about the respective views of their Honours on this issue the relevant extracts from both judgments in Boral Gas are extracted below: The gist of the offence created by s 15 is not, in my opinion, the single act or omission of failing to observe a general duty to maintain at all times a safe working environment for employees which may possess one or more of a number of characteristics or features, but each particular act or omission which amounts to a failure to maintain that environment. Each act or omission which constitutes a failure specified in s 15(2) or otherwise amounts to a breach of the duty under s 15(1) is, in my opinion, a separate offence under the section: Hill J at 389, 390. On its face, my view is that s 15 in subs (1) creates but one offence, namely the failure of an employer to "ensure the health, safety and welfare at work of all his employees". Subsection (2), in its terms, sets out a number and variety of ways in which that single offence may be committed; such ways, I emphasise, are put in the alternative so that any one of them, if made out, may constitute the single offence in subs (1), although if each be made out then the corresponding number of separate offences against subs (1) will be committed. Marks J held that s 15(1) created but one offence and the manner in which a breach occurred was provided by way of the examples in subs (2). I do not agree. I view each of the lettered pars (a) to (f) in subs (2) as constituting separate and discrete means, albeit in some cases being in a similar fact situation, by which an employer may commit one or more separate offences against subs (1) and in respect of each of which separate charges would have to be made to avoid duplicity: Hungerford J at 416. 20 According to Waco Kwikform the majority view in Boral Gas on the construction of s 15 was accepted by the majority in Newcastle Wallsend. The particular passage from that judgment upon which reliance was placed is found at [117] where Walton J, Vice-President and Boland J, said: We do not consider there can any longer be doubt that whilst s 15(1) of the Act creates one general duty, each act or omission constituting a failure of a duty specified in s 15(2) or otherwise breaching s 15(1), may be a separate offence under the section. 21 None of this, however, applies to Waco Kwikform which has been charged with an offence under s 8(2) of the 2000 Act (reproducing in substantially similar terms, s 16(1) of the 1983 Act). The relevant findings as to s 15 of the 1983 Act do have relevance to Mr Tracey and Bradley Tracey Scaffolding Services both of whom have been charged with offences under s 8(1) of the 2000 Act. 22 The approach taken by Hill J to s 15 was not adopted with regard to s 16(1) of the 1983 Act. Of that sub-section, his Honour said (at 395): The provisions of s 16(1) are, on their face, in marked contrast to those of s 15(1) and (2). In my opinion, s 16(1) creates only one offence where, on a particular occasion, an employer fails to ensure that persons not in his employment are not exposed to risks arising from the conduct of his undertaking or operations while they are at the employer's place of work notwithstanding that the conduct of the undertaking or operations at that point exposes different persons to different risks which arise in a variety of ways. In my opinion, the gist of the offence created by s 16(1) is that of the employer exposing persons not in his employment to risks to their health or safety while at his place of work. The act or omission resulting in the exposure of risks to their health or safety may arise in one or more of a number of ways. In other words, the prohibited act or omission may possess one or more characteristics and proof of the existence, at a particular time, of several risks and several causes of risks, each to different persons or groups of persons, will establish only one contravention of the section. In my opinion, the information, in this case, as amplified by the particulars provided, does not allege more than one offence and is not ambiguous and does not give rise to duplicity. 23 Hungerford J came to a contrary view, holding that although s 16(1) created one offence, the particulars provided, which were in similar terms to those provided to the s 15 charge, resulted in the s 16(1) charge suffering from the same defect as the s 15 charge. The s 16(1) charge in his Honour's view was therefore bad for latent duplicity and uncertainty (at 422). Fisher CJ considered the issue only to the limited extent of relying on the lack of further particularisation of the s 16 offence provision (as opposed to the further particularisation of s 15(1) set out under s 15(2)) as providing confirmation of his conclusion that s 15(1) stated the offence and s 15(2) provided further but not necessarily exhaustive particularisation (at 364). 24 In Newcastle Wallsend the majority judgment in the passage at [117] extracted above expressly excluded s 16(1) from the observations made concerning s 15(1) and s 15(2) of the 1983 Act. 25 The majority findings in Boral Gas (at least as to the construction of s 15, but not s 16(1)) prompted the introduction into the 1983 Act of s 49A. The provision provided: (1) More than one contravention of section 15, 16, 17 or 18 by a person that arise out of the same factual circumstances may be charged as a single offence or as separate offences. (2) This section does not authorise contraventions of 2 or more of those sections to be charged as a single offence. (3) A single penalty only may be imposed in respect of more than one contravention of any such section that is charged as a single offence. 26 The proposed operation of s 49A was explained in the second reading speech for its introduction: To assist in prosecutions of offences under the Act, the bill gives prosecutors the option of charging several breaches of one of the general duties as a single offence, if they arose out of the same factual circumstances. For example, a serious incident at a workplace may involve a breach of the employer's general statutory obligation to provide a safe and healthy workplace in several respects, such as failure to provide training, failure to set up safe systems of work, failure to ensure equipment is safe, failure to provide personal protective equipment to workers and failure to provide adequate supervision. Under the existing case precedents, it is unclear if each of these related contraventions would have to be charged as a separate breach of section 15 of the Act, which would complicate court proceedings, and lead to much repetition of the factual circumstances of the incident. The new procedure will allow for simplified proceedings, where all the breaches which arise from the same factual circumstances can be charged as a single offence... the test for similarity of breaches - that they must arise from the same factual circumstances - is not intended to be overly technical or restrictive. 27 Section 49A applied to both s 15 and s 16(1). It allowed, where there was more than one contravention of either provision by a person arising out of the same factual circumstances, for the contraventions to be charged as a single offence (or separate offences). 28 Section 49A was replaced by s 31 of the 2000 Act. That section provides: (1) More than one contravention of a provision of Division 1 by a person that arise out of the same factual circumstances may be charged as a single offence or as separate offences. (2) This section does not authorise contraventions of 2 or more of those provisions to be charged as a single offence. (3) A single penalty only may be imposed in respect of more than one contravention of any such provision that is charged as a single offence. 29 There is no dispute between the parties on the present application that the charges against each defendant allege one offence. The dispute centres upon whether the amendment sought to paragraph (d)(i) would result in an additional contravention which constitutes a new and separate offence, or whether it is a particular of the single offence charged. The answer in my view lies in the construction of each charge as a single offence. It is a corollary of that construction that the allegations set out in paragraph (d) concern conduct particularising the central allegation, namely the failure to ensure the safety of employers (the s 8(1) charges) and the failure to ensure that non-employees were not exposed to risks to health and safety (the s 8(2) charges): see Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 LGERA 361 at 365. Section 31 provides for several contraventions (set out in particular (d)) to be charged as a single offence. Where this has occurred, as here, the remaining condition, which must be satisfied, is whether those several contraventions, "arise out of the same factual circumstances". 30 In order to ascertain this, on the somewhat limited material available, recourse may be had to both the charges and the accompanying affidavits. 31 From that material a number of facts may be gleaned. On 5 January 2006, Paul Hughes and William Issell, employees of Bradley Tracey Scaffolding Services, were performing scaffolding duties which included the task of securing an electric winch to scaffolding. Waco Kwikform conducted a business which involved providing scaffolding equipment and scaffold labour services to various work sites. It had contracted with Delta to provide scaffolding equipment and scaffold labour services for the demolition of a building located at 55 Sussex Street Sydney. Waco Kwikform sub-contracted with Bradley Tracey Scaffolding Services for the provision of labour to erect and dismantle the scaffolding at the site. While Hughes and Issell were in the process of securing the winch Hughes fell through an open penetration in the scaffolding working deck some 33 metres to the ground. He received fatal injuries. 32 The purpose of securing the winch to the scaffolding was in order to facilitate the lowering of scaffolding components. According to the charges and accompanying affidavits Hughes and Issell were exposed to risk of injury by reason of multiple causes which are set out in paragraph (d). It is clear from my reading of the affidavits that all those causes arose out of the same factual circumstances. Moreover, the affidavits specifically deal with a failure to provide a safe system of work for the use of employees, suitable for lowering scaffolding components (the proposed amendment to paragraph (d)(i)). It is alleged in the affidavits that the safe work method statement (SWMS) devised by Waco Kwikform, which was adopted by Bradley Tracey Scaffolding Services, did not identify an electric winch as a device for lowering the scaffolding components. Instead the method proposed in the SWMS was to pass the scaffolding by hand to persons not more than 3 metres apart (vertically) or to use a crane or hoist. Moreover, according to the affidavits, Waco Kwikform's SWMS did not provide instruction for the work method adopted by Hughes and Issell, and it failed to identify the hazard posed by penetrations in the scaffolding and the associated risk of falling from the scaffolding, or the necessary steps to control that risk. 33 I conclude that the proposed amendment to paragraph (d)(i), by reason of s 31(1) of the 2000 Act, constitutes a factual particular which further informs how the failure to ensure the health and safety of Hughes and Issell under the s 8(1) charges is said to have occurred; and, how the failure to ensure that Hughes and Issell were not exposed to risks to their health and safety, under the s 8(2) charge against Waco Kwikform, is said to have occurred. The defendants have not suggested or identified any prejudice to them if the application to amend the charges is granted. I propose therefore to allow the amendment sought to paragraph (d)(i) under s 170 of the Industrial Relations Act 1996, and I so order.

Inspector Anthony Nicholson (WorkCover Authority of New South Wales) v Bradley Tracey and Others

At a glance

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Judgment (20 paragraphs)

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Cases Cited (5)

Cited By (1)