Inspector Ching v Bros Bins Systems Pty Ltd

Inspector Ching v Bros Bins Systems Pty Ltd - [2002] NSWIRComm 276 - NSWIRComm 2002 case summary — Zoe

[44]

23 The meaning of "control" was discussed by a Full Bench of this Court in McMillan Britton and Kell v WorkCover Authority of New South Wales (Inspector Blake) (1999) 89 IR 464. After citing dictionary definitions and after discussing a number of decided cases the Bench said: (at 480-1) "The obligation imposed by s 17(1)(b) on the appellant to ensure the plant was safe and without risks to health is to be so viewed and as assisting in the determination of whether it had at the relevant time the requisite degree of control over the subject plant as would make it liable. In other words, the proper operation of the section requires, in our view, the degree of control which a defendant has over plant or substances or non-domestic premises, as the case may be, to be to the extent to which that person is able to ensure safety by guaranteeing, securing or making certain. For that reason, the applicable meaning of 'control' in the context of s 17, by reference to its ordinary meaning as earlier outlined, must, it seems to us, have about it the sense of not mere 'sway', 'checking' or 'restraint' but rather controlling in the sense of 'directing action' or 'command' - the ability of a person to compel corrective action to secure safety, having in mind the context and purpose of the statute, clearly seems to be necessary in order to enable safety to be ensured. If it were otherwise then the alleged controller would be simply unable to assume the strict duty cast by the section. We are satisfied that this approach to the meaning of 'control' is consistent with that expressed in Rowson and Growth Securities by adopting the contextual approach stated in Australia and New Zealand Bank. It may be thought that the words 'to any extent' qualify the word 'control' so as to reduce or diminish the degree otherwise than as we have stated; however, and conformably with the context of the section, the phrase 'to any extent, control' means no more than that the person liable being able to compel (or direct or command) to any extent."

[49]

The inclusive nature of the definition of plant in s.4 compels an examination of the ordinary meaning of the word "plant". A useful description of this word is given by Lord Diplock in the House of Lords in Haigh v Ireland (Charles W) Ltd (1973) 3 All ER 1137. His Lordship said (at 1147-8) 'In the context of an Act which deals with what goes on in factories, 'plant' is an ordinary English word in common usage whose meaning is well understood. To quote the Shorter Oxford English Dictionary it means 'The fixtures, implements, and apparatus used in carrying on any industrial process'. As such it is to be distinguished from the products of the process or the objects on which the process is carried out. Save in its restriction to 'industrial' processes, which is appropriate to an Act in which the definition of 'factory' is confined to premises in which processes which would ordinarily be called 'industrial' are carried on, this definition is substantially the same as that stated by Lindley LJ in Yarmouth v France (1887) 19 QBD 647 at 658: ' . . . in its ordinary sense [he said], it includes whatever apparatus is used by a business man for carrying on his business, - not his stock-in-trade which he buys or makes for sale; but all goods and chattels, fixed or moveable, live or dead, which he keeps for permanent employment in his business . . .' It was this ordinary meaning which he ascribed to the word 'plant' as used in the Employers' Liability Act 1880, in a context in which it was not confined to plant of employers whose business consisted of carrying on industrial processes. The marked preference which courts habitually show for citing judicial in preference to lexicographers' definitions of ordinary English words, even when they are not legal terms of art, has led to the acceptance of Lindley LJ's definition as being the meaning of the word 'plant' where it has been used without any express statutory definition in a variety of enactments, particularly those dealing with taxation of industrial enterprises. It is a definition of a physical object by reference to the use to which it is being put. Where, as in the Factories Act 1961, all references to 'plant' are to plant within a factory in which an industrial process is carried on, the only relevant use, in my opinion, is that to which the physical object is being put in that factory. If it is there as part of the apparatus for use in carrying on the industrial process undertaken on those premises, it is 'plant' within the meaning of the Act even though it may be temporarily out of use or in the course of installation, repair or removal. If it is there for the purpose of being subjected to that industrial process it is an 'article' as that term is used in the definition in s.175 to describe the physical objects on which are carried out those industrial processes which qualify the premises where they are undertaken as a 'factory' within the meaning of the Act; it is not 'plant', whatever may be the use to which it has been previously put or may be subsequently put elsewhere.' The above extract emphasises that it is necessary to have regard to the context in which the word occurs in order to establish its correct meaning. It is for this reason that I shall refrain from considering the many taxation cases dealing with the meaning of that word because in most cases the courts there were considering the meaning of plant in the context of plant used for the purpose of gaining assessable income. This has led in many cases to a discussion as to whether a building might be plant. Another example is provided by the well known case of Yarmouth v France (1887) 19 QBD 647 in which it was held that a horse which had injured an employee was plant used in the business of the defendant."

[61]

39 The matter may be tested in this way. Assuming that I was the owner of an integrated personal computer which seemed to malfunction and from time to time became "live" giving out an electric shock and tripping electrical safety switches. Assume that I took it to a repairer indicating that there was sensitive information on the hard disk and that I wanted the repairer only to repair any electrical fault but not to operate the computer system so as to gain access to the hard disk drive. In fact, I declined to provide the password to enable such access to be given. Under those circumstances it is arguable that I have retained some degree of control over the computer whilst it is with the repairer. Assuming that the computer is to be repaired by an employee of the repairing organisation, it is clear that the computer is not safe and that working on it may arguably pose a risk to the safety of the employees performing the work. If the WorkCover Authority of New South Wales is correct in the construction which it contends should apply to s 17(1)(b) namely that the computer would be plant for the purpose of that section, then arguably it would be necessary for me to have it repaired or at least repair the electrical fault before giving it to the repairer so as to avoid the application of s 17(1)(b). Otherwise I would be in breach of the absolute obligation created by that provision. In the course of submissions Mr Reitano said that this would be a situation where s 53 of the Act would apply. Section 53 is in the following terms: 53 Defence It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that: (a) it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence, or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.

[67]

45 Peterson J next considered the meaning of the word "plant". His Honour had been asked to conclude that the columns created the general setting in which the business activities had been conducted being in the nature of land or buildings. It had been submitted that the columns in question "delineated the boundary of the place of work in effect in much the same way as a wall of a building or any fence might do." His Honour had no difficulty in rejecting this submission saying, in part: "An analysis of s 17 of the Act demonstrates an intention to impose a duty to ensure safety and an absence of risks to health of any person who has control (to any extent) of what I might paraphrase as workplaces, plant or substances for use at work. The division of the section into premises, plant and substances seems to me to have a width which is intended to be all-embracing in the industrial context. "Plant" is not to be given a narrow meaning but one wide enough to embrace the multiplicity of machinery and equipment which may be employed at a workplace. The expression is not to be confined to machinery of a productive nature or indeed mechanised or electrical or electronic equipment only. The meaning is wide enough to embrace a chair which is employed by a person at work. Why then should it not extend to manufactured columns or columns which are available for use in a retail store? The form of these columns would permit a variety of uses including of course that which was employed in this case. The fact that they were used here for the purpose of defining the line between two workplaces does not in my opinion characterise them as the "setting" of the work in the sense employed in the tax cases. Given the context of s 17, a conclusion that the columns were part of the "setting" of the work would place them (as do the authorities in the tax areas) in the category of 'premises', a result I would consider absurd and contrary to both the intention and meaning of the section. I am satisfied that they constitute "plant" within the meaning of s 17(1)(b) of the Act. I find untenable the submission that s 17 is directed to plant and not its use. The purpose of the section seems to me to be patently obvious: it is to ensure that so far as s 17(1)(b) is concerned, the use or indeed the presence of plant or substances, will not present a danger to relevant persons at that place of work. An offence under this provision can arise when the plant is inactive or when it is in use. If one contemplates the provision of an acid for use in some process step in a given operation, then the concern would be that the storage and means of making available the acid to the process would be safe and that proper precautions were taken in relation thereto in the conduct of the process itself. The acid for the purposes of this discussion may be assumed to have an inherent characteristic which is dangerous to humans on bodily contact. It is not the neutralisation of that inherent characteristic to which the section is directed but the proper management of the substance. In like manner, the use or management of the columns is a matter with which s 17 is concerned."

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