51 Despite these findings, regard must be had to the absolute nature of the liability imposed by s16(1) of the Act. In one sense it may readily be seen that the Defendant did not ensure relevant safety. However, the matter may not be viewed quite so simplistically. The lack of safety engendered in the circumstances must result from a relevant failure by the Defendant. The principles relevant to that matter were stated by Fisher P in Cullen v State Rail Authority of New South Wales (1989) 31 IR 207 in a minority judgment in an appeal before the Commission in Court Session. The later judgment of the Commission in Court Session in State Rail Authority of New South Wales v Dawson (McMahon DP, Hill and Hungerford JJ) (1990) 37 IR 110 adopted the principles as expounded by Fisher P and noted that on the point of principle, the majority in Cullen did not differ as the following extract from SRA v Dawson demonstrates:
In terms of the relevant principles, although a contrary conclusion was reached on the facts, Fisher P in Cullen observed at 210-211;
"In circumstances where is surpassingly obvious that the elements of a safe system of work were not being observed, there is nevertheless a criminal onus upon the prosecution to prove the employer's failure. If at the end of the evidence there is any doubt raised as to whether the events were caused by the failure of the employer or some other unrelated factor, then the employer is entitled to the benefit of that doubt. Here it seems impossible to overlook the possibility that in his familiarity with his employment, the deceased was disregarding what he had been taught about safe clearances, about power outages and about the use of ropes and equipment in order to get the job over and done with. These matters do not have to be proved in an affirmative way so as to displace the prosecution's case. What has to be done is to raise a reasonable doubt as to the proof of the case alleged.
. . .
I consider that this safety code should be viewed in the light of the Industrial Commission's practical experience of industrial circumstances. The deceased was well trained by experience over many years and by qualification to both work at and supervise tree lopping. Neither qualifications nor experience were seriously challenged in the evidence, indeed, the evidence established the deceased's responsible behaviour and experience as a qualified linesman in this precise work. The employer was entitled to rely upon these qualities. The case against the employer is not strengthened by suggested reliance on ever higher levels of supervision.
The case against the Defendant is not proved beyond reasonable doubt if there remains an acceptable hypothesis reasonably consistent with the innocence of the Defendant, that is, a reasonable doubt as to whether the matter alleged has been proved beyond reasonable doubt and was causally connected to the breach. I consider that on the evidence and for these reasons, the prosecution has not made out its case to the exclusion of reasonable doubt.
Were it necessary to do so, I would also accept, this time on the basis of probabilities, that a probable cause of the events alleged, the unforeseeable and unanticipated conduct of a properly trained and experienced supervisor supervened to remove from the employer the ability to control the happenings of the day which the employer otherwise would have had. The absence of information to the employer about the supervisor's casual acts of negligence, including the abandonment of a number of safety measures it was his duty to put in place, made it impractical for the employer to make further provision.
My essential finding under this aspect of the case is that the accident probably came about because of the casual acts of negligence of the supervisor, and not by the neglect of any matter over which the employer had control". (Our italics.)
The decisions in Cullen point up the not unusual difficulties which arise in determining cases of this nature where the ingredients of the offence for breach of statutory duty impose a strict liability, as does s15. It seems to us that the distinction between the majority and minority judgment in Cullen does not relate in any way to a different view of the relevant principles, but rather to the result of their application to the particular facts. There is nothing in the majority judgment to detract from the observations of Fisher P as to the onus and standard of proof required of the prosecution in criminal proceedings. We respectfully agree with his Honour's observations in that respect. (Ibid at p.123-124).