Inspector Ching v Bros Bins Systems Pty Ltd

FILE NUMBER: IRC 5012 of 2001 CORAM: Marks J CATCHWORDS : Occupational Health and Safety Act prosecution under s 17(1)(b) - Owner left truck and equipment for repair by auto electrician - Principles applying to no case to answer submission - Held truck and equipment not "plant" provided by owner for use or operation by empoyees of auto electrician - Proceedings dismissed. LEGISLATION CITED : Occupational Health and Safety Act 1983 s5 s17 s18 WorkCover Authority of NSW (Insp Rech) v Walter Construction Group Ltd (IRC 5404,5,6 of 1999 unrep 13 Dec 2000) Waugh v Kippen (1986) 160 CLR 156 Capral Aluminium Ltd v WorkCover Authority of NSW (Insp Mayo-Ramsey) (2000) 99 IR 29 McMillan Britton & Kell v WorkCover Authority of NSW (Insp Blake) (1999) 89 IR 464 WorkCover Authority of NSW (Insp Page) Growth Equities Services Pty Ltd (unrep CT93/1047 9 Sep 1994) CASES CITED : WorkCover Authority of NSW (Insp Gilbert) v R & D Panelform Pty Ltd (1997) NSWIRComm 189 Haigh v Ireland (Charles W) Ltd (1973) 3 All ER 1137 Yarmouth v France (1887) 19 QBD 647 Government Insurance Office of NSW v R J Green & Lloyd Pty Ltd (1965-66) 114 CLR 437 Elliott v Grey (1960) 1 QB 367 Stevenson v Reliance Petroleum Ltd 5 DLR (2d) 673 Insp Page v Woolworths Ltd (unrep CT 1044 of 1993 9 Sep 1994) HEARING DATES: 09/09/2002; 09/10/2002; 09/11/2002; 09/12/2002; 09/13/2002 DATE OF JUDGMENT: 11/05/2002

PROSECUTOR Mr R Reitano of counsel SOLICITORS WorkCover Authority of NSW

LEGAL REPRESENTATIVES: DEFENDANT Mr P Kintominas of counsel SOLICITORS Castrission & Co

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Tuesday 5 November 2002

Matter Number IRC 5012 of 2001 INSPECTOR BARNABAS CHING v BROS BINS SYSTEMS PTY LIMITED Prosecution under s 17(1)(b) of the Occupational Health and Safety Act 1983

1 By order, the defendant Bros Bins Systems Pty Limited was charged with a breach of s 17(1)(b) of the Occupational Health and Safety Act 1983 ("the Act") by the prosecutor Inspector Barnabas Ching of the WorkCover Authority of New South Wales. The charge alleged that the defendant "being a person who on 22 November, 1999 at 591 Gardeners Road, Mascot in the State of New South Wales, had, to any extent, control of plant, to wit a 1977 Nissan Diesel Hydraulic and pneumatic rear loading hook lift truck, registration "WUBISH", which plant had been provided for the use or operation of persons at work, not being employees of the defendant failed to ensure the said plant was safe and without risk to health, contrary to Section 17(1)(b) of the Occupational Health and Safety Act 1983.

2 The particulars of the charge are: (a) The defendant, at all material times was the Owner of a 1977 Nissan Diesel Hydraulic and pneumatic rear loading hook lift truck, registration "WUBISH".

(b) The defendant, at all material times, was in the business of supplying and removing industrial hook lift bins.

c) The defendant, at all material times, engaged the services of Exo Pty Ltd t/as Tibby Rose Auto , to carry out repair work on the said truck.

d) The defendant at all material times failed to provide or maintain plant, to wit 1977 Nissan Diesel Hydraulic and pneumatic rear loading hook lift truck registration 'WUBISH", that was safe and without risk to health the persons not in its employment by: (i) Failing to provide a safety prop or other mechanism to prevent the tilt tipping mid section of the said plant from descending whilst service/repair work was being carried out underneath it.

(ii) Failing to correctly identify all levers and switches inside and outside plant as to their functions.

(iii) Failing to install a safety lock, shroud or other safety mechanism on the hooks engagement/disengagement lever, incorrectly labelled "hoist/raise/hold/lower" lever of plant. e) The defendant, at all material times failed to ensure persons repairing or servicing said plant were adequately supervised and instructed on the safe operating procedures of the said plant.

f) The defendant, at all material times, failed to adequately inform persons working on the repair or maintenance of the said plant of the lever control functions of the said plant.

g) As a result of the said failures Matthew Whitehouse and Darren Targett were placed at risk of injury.

3 The proceedings in connection with the charge were heard concurrently with proceedings brought under s 15(1) of the Act against Exo Pty Ltd t/as Tibby Rose Auto. At the conclusion of the prosecution case the defendant in these proceedings submitted that there was no case to answer. This judgment deals solely with that submission made by that defendant.

4 Much of the evidence in the proceedings concerning factual matters surrounding and related to the incident which gave rise to the prosecution is irrelevant for the purpose of dealing with the no case to answer submission. However, it is necessary to summarise the nature and effect of that part of the evidence which is of relevance. The defendant owned a hook lift truck bearing registration label "WUBISH". The truck was used for the delivery, uplift and emptying of bins in which commercial waste was removed. Bins could be picked up, manipulated onto and removed from the truck by using a hydraulically operated mechanism controlled by a number of levers and switches situated on the vehicle and within the driver's cabin. Once on the truck a bin could be emptied by raising the front part of it using a pneumatically operated hook mechanism which had the effect of locking together two separate parts of a jib assembly.

5 On 22 November 1999, the truck was taken by arrangement to Tibby Rose Auto for the purpose of having repairs carried out to its electrical systems. The vehicle had been driven into the Tibby Rose Auto premises at 591 Gardeners Road, Mascot by an employee of the defendant, David Wood. Mr Wood habitually drove that vehicle. During the course of Tibby Rose Auto employees carrying out repairs, Mr Wood agreed to lift up the jib which had been lying flat on the truck chassis to give better access to some part of the electrical wiring. He locked the jib mechanism by using the pneumatically controlled lever and raised the jib by using the hydraulic mechanism. Whilst an auto electrician, Matthew Whitehouse was working on the chassis, the jib collapsed crushing him and causing fatal injuries.

6 The defendant submitted that in these circumstances s 17(1)(b) of the Act had no application.

7 For the purpose of dealing with this submission I will proceed on the basis that I am required to make an assessment as to whether on the evidence as it stands the defendant could lawfully be convicted, or put conversely, whether there is no evidence on which I could convict it. I should proceed also on the basis that in order to undertake this task I must: 1. Take the prosecution case at its highest and in doing so I must then disregard any evidence favouring the defendant and have regard only to that evidence which favours the prosecution.

2. Not take into account the probative value of the evidence, the weight to be afforded to that evidence, or the credibility of the witnesses who gave it.

3. Take into account the fact that the evidence and inferences to be drawn from it must be capable of establishing a prima facie proof of each ingredient of the offence beyond reasonable doubt.

8 I discussed what I understand to be the relevant and appropriate principles and the proper approach to be taken in dealing with applications of this kind in WorkCover Authority of New South Wales (Inspector Rech) v Walter Construction Group Limited (IRC 5404, 5405 and 5406 of 1999, unreported, 13 December 2000). I discussed in those proceedings also a possible qualification to the above principles which, for the present purposes, I regard as being irrelevant. I adopt, without repeating, the discussion of the principles and reference to relevant authorities contained in that judgment.

9 Before considering in detail the provisions of s 17(1)(b) of the Act, it is necessary to have regard to the provisions of the Act as a whole and the context in which s 17 operates.

10 The objects of the Act are contained within s 5. They are as follows: (1) The objects of this Act are: (a) to secure the health, safety and welfare of persons at work, (b) to protect persons at a place of work (other than persons at work) against risks to health or safety arising out of the activities of persons at work, (c) to promote an occupational environment for persons at work which is adapted to their physiological and psychological needs, and (d) to provide the means whereby the associated occupational health and safety legislation may be progressively replaced by comprehensive provisions made by or under this Act. (2) Subsection (1) (d) does not apply to the mining legislation declared by Division 4 of Part 4 to be associated occupational health and safety legislation. (3) The provisions of any paragraph of subsection (1) shall not be construed as limiting or being limited by the operation of any other provision of this Act.

11 Section 17 of the Act is contained within Division 1 of Part 3. Part 3 is entitled "General Provisions relating to Health, Safety and Welfare at Work". Division 1 is entitled "General Duties".

12 Section 15(1) imposes an absolute obligation on employers to "ensure the health, safety and welfare at work" of all employees. Subsection 2 contains a number of examples of the way in which subsection 1 may be breached. Section 16 imposes obligations on employers and self-employed persons. These obligations, also expressed in absolute terms, require employers and self employed persons to ensure that persons who are not in their employment are not exposed to risks to their health and safety arising from the conduct of their undertaking while they are at their place of work.

13 Section 17 is in the following terms: 17 Persons in control of workplaces, plants and substances used by non-employees to ensure health and safety (1) Each person who has, to any extent, control of: (a) non-domestic premises which have been made available to persons (not being the person's employees) as a place of work, or the means of access thereto or egress therefrom, or (b) any plant or substance in any non-domestic premises which has been provided for the use or operation of persons at work (not being the person's employees),

shall ensure that the premises, the means of access thereto or egress therefrom or the plant or substance, as the case may be, are or is safe and without risks to health.

Maximum penalty: 5,000 penalty units in the case of a corporation or 500 penalty units in any other case. (2) Where a person has, by virtue of any contract or lease, an obligation of any extent in relation to: (a) the maintenance or repair of any premises referred to in subsection (1) (a) or any means of access thereto or egress therefrom, or (b) the safety of, or the absence of risks to health arising from, any plant or substance referred to in subsection (1) (b),

that person shall be treated, for the purposes of subsection (1), as being a person who has control of the thing to which the person's obligation extends. (3) A reference in this section to a person having control of any thing is a reference to a person having control of the thing in connection with the carrying on by the person of a trade, business or other undertaking (whether for profit or not).

14 Section 18 is directed to persons who design, manufacture or supply any plant or substance for use by persons at work. Section 18 is in the following 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. Maximum penalty: 5,000 penalty units in the case of a corporation or 500 penalty units in any other case.

15 Section 19 requires employees while at work to take reasonable care for the health and safety of persons who are at the employee's place of work and who may be affected by the employee's acts or omissions at work. Furthermore, employees are required to co-operate with employers and other persons upon whom obligations are imposed by the Act to ensure that the employer or other persons can comply with the Act.

16 There are other provisions contained within Division 1 of Part 3 which, for present purposes need not be referred to.

17 It will be seen that ss 15 and 16 are directed to persons (including corporations) who carry on some form of undertaking in or at which persons perform work whether as employees or otherwise. Section 19 imposes obligations on employees whilst at work. Section 18 is directed to persons (including corporations) who design, manufacture or supply plant or substances for use by persons at work and do so in the course of carrying on a trade, business or other undertaking.

18 In simplistic terms s 17 operates in two ways. Firstly, it applies to persons (including corporations) who have "to any extent" control of non-domestic premises which have been made available to persons other than employees as a place of work or the means of access to or egress from a place of work. Secondly, it is directed to such persons who have to any extent control of any plant or substance in any non-domestic premises which have been provided for the use or operation of persons at work who are not employees.

19 It should firstly be observed, in a general way that consistent with the objects of the Act the provisions to which I have referred cover and are intended to cover a wide range of circumstances where work is performed by persons. Prima facie, and without reference to authority, the Act should be construed in a way which is consistent with its purpose and objects so as to reflect the intention of the legislature. So much was urged by Mr Reitano, counsel for the prosecutor. However, Mr Kintominas, counsel for the defendant submitted that the Act is a penal statute and that it should be construed strictly so that any ambiguity would be resolved in favour of the defendant.

20 This tension was considered by the High Court of Australia in Waugh v Kippen (1986) 160 CLR 156. The Court was considering the provisions of the Factories and Shops Act 1960, admittedly in the context of a civil claim for damages arising out of a breach of that legislation. At 164, in a joint judgment Gibbs CJ, Mason, Wilson and Dawson JJ said: "A construction of the rule that would require an employer to have regard to the risk of injury to a particular worker finds support in the character of the Act as legislation concerned with furthering industrial safety. In that character it should be construed "so as to give the fullest relief which the fair meaning of its language will allow", to use the words of Isaacs J. in Bull v. Attorney-General for New South Wales (1913) 17 CLR 370, at p 384; cf. also Pearce, Statutory Interpretation in Australia , 2nd ed. (1981), pars. 187-191, pp. 137-141. On the other hand, there is the consideration, to which McPherson J. referred, that a breach of cl. 25 is attended with a penal sanction. The modern approach in construing penal statutes was stated by Gibbs J. (as he then was) in Beckwith v. The Queen (1976) 135 CLR 569, at p 576 as follows: "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: see R. v. Adams (1935) 53 CLR 563, at pp 567-568; Craies on Statute Law , 7th ed. (1971), pp 529-534. The rule is perhaps one of last resort".

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 (1951) AC 639, per Lord Porter at p 650; John Summers & Son Ltd. v. Frost (1955) AC 740, per Viscount Simonds at p 751; McCarthy v. Coldair, Ltd . (1951) 2 TLR 1226, per Denning L.J. at pp 1227-1228. 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 incidents of an obligation imposed on the employer. The legislature cannot speak with a forked tongue. Although the standard of proof applicable to criminal proceedings for a breach of the obligation will differ from that applicable to civil proceedings and the law may provide specific defences by way of answer to a prosecution which have no relevance to civil proceedings (as in Sovar v. Henry Lane Pty. Ltd . (1967) 116 CLR 397), the elements that make up the obligation will be the same in each case. For example, in the present case one could not conclude in favour of an objective criterion of the likelihood of a risk of injury in the context of a criminal proceeding and a subjective criterion for the purposes of a civil action."

21 In Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsey) (2000) 99 IR 29, a Full Bench of this Court in considering Waugh v Kippen said: "The reference to the rule being one perhaps of last resort requires …some explanation. It means, generally speaking, that the rule only applies to require that an ambiguity as to the meaning of the provision be resolved in favour of an accused if the ambiguity is one which persists after the ordinary rules of construction have 'run out'… ."(at 46). I respectfully adopt this approach.

22 It is now necessary to consider the provisions of s 17(1)(b), their applicability to the circumstances of these proceedings and whether there is any ambiguity. The first element is that there be control of any plant or substance in any non-domestic premises.

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."

24 In particular the Full Bench had regard to observations of Peterson J in WorkCover Authority of New South Wales (Inspector Page) v Growth Equities Services Pty Ltd (unreported, CT93/1047, 9 September 1994). His Honour in those proceedings concluded that possession of plant by another did not necessarily exclude that plant being under the control to any extent of a person.

25 Utilising the approach to the evidence which I have previously set out in para 7 above, it is clear that there is evidence to establish that the defendant retained some control over the truck whilst it was within the premises of Tibby Rose Auto. The evidence was that the driver, employed by the defendant was involved in the operation of the hydraulic lifting system and in locking the jib mechanism. It was he who assessed that the truck and its equipment were safe to enable Mr Whitehouse to carry out work on it.

26 The next element is the requirement that the truck and its equipment or, perhaps, the truck or its equipment, be plant within s 17(1)(b). It was in this area that the greatest controversy arose between the parties. Put simply, the prosecution submitted that the truck was plant and that it had been provided by the defendant for both use and operation of employees of Tibby Rose Auto during the course of performing their work. Accordingly, it fell within s 17(1)(b). The defendant submitted that the truck was not plant and, in addition, even if it had been plant it had not been provided for the use or operation of persons at work in the sense that it was not used by them as part of their plant to be used or operated in connection with carrying out their work.

27 The defendant relied on a discussion of the meaning of the word "plant" in the context of s 18 of the Act in a judgment which I gave in WorkCover Authority of New South Wales (Insp Gilbert) v R & D Panelform Pty Ltd (1997) NSWIRComm 189 (unrep 19 December 1997). In the course of that judgment I said in part: "The word 'plant' is defined in s 4 of the Act in an inclusive manner as follows: 'plant' includes any machinery, equipment and appliance;

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."

28 The 2nd Ed of the Macquarie Dictionary defines plant, relevantly, as: "the equipment, including the fixtures, machinery, tools, etc, and often the buildings, necessary to carry on any industrial business: a manufacturing plant …. the complete equipment or apparatus for a particular mechanical process or operation: the power plant of a factory".

29 The sense in which "plant" was discussed in the authorities referred to above and in the Macquarie Dictionary definition indicates that the word is descriptive of items that are intended to be used or operated in the course of carrying on activities, inferentially being activities of a business nature or something analogous to a business nature. The word in this sense conveys a meaning more indicative of something which is used or operated to enable work to be carried out.

30 It does not seem to me that the definition of plant contained in s 4 of the Act adds anything to this debate. It is an inclusive definition and is intended to have wide application with respect to the items and articles which are covered but does not, in my opinion, assist in determining the fundamental issue which is raised by these proceedings.

31 Of much greater assistance is the requirement contained within s 17(1)(b) that the plant must have been provided for the use or operation of persons at work.

32 In one sense, the position contended for by Mr Reitano on behalf of the prosecution that the truck was intended to be used and operated by the employees of Tibby Rose Auto is tenable. However there are many decided cases dealing with the "use" of a motor vehicle. One such case is Government Insurance Office of New South Wales v R J Green & Lloyd Pty Ltd (1965-66) 114 CLR 437, a decision of the High Court of Australia. That case concerned the application of the words "use of a motor vehicle" in a compulsory policy of insurance issued pursuant to a statute requiring such policies to be held by owners of motor vehicles used on roads. The Court held that the use of a motor vehicle extended beyond circumstances where it was being driven and was in motion. The motor vehicle was being used whilst it was stationary and being loaded. Mr Reitano referred me to a decision of the English Court of Appeal in Elliott v Grey (1960) I QB 367. It was there held that a motor vehicle was in use for the purpose of similar compulsory statutory insurance in the UK even whilst it was left outside the owner's house in circumstances where the vehicle could not be driven because the engine would not start, the battery having been removed, and there was no petrol in the tank.

33 There are a myriad of cases involving the use of a motor vehicle for the purposes of statutory policies of insurance referred to in any of the well-known texts in this area. In the same way there are cases dealing with the operation of motor vehicles such as Stevenson v Reliance Petroleum Ltd 5 DLR (2d) 673 a judgment of the Full Court of the Supreme Court of Canada.

34 There is a danger in applying an approach to construction of words used in the context of statutory motor vehicle insurance policies to the use of the same words in the context of s 17(1)(b) of the Act. In the circumstances I prefer to use what I understand to be the ordinary English usage of the words "use" and "operate".

35 Section 18 also touches upon the supply of plant for use by persons at work. As such s 18 complements s 17. The combined effect of ss 17 and 18 in general terms is to ensure that where plant (and also substances) are made available for use by persons at work by a person or entity who is not the employer of those persons then there is an obligation to ensure that the plant (and substance) is safe and without risks to health subject to the qualifications applying to each of the sections. Section 17, as is obvious, is confined in the creation of an obligation to persons who have to any extent control of the plant or substance. Section 18 extends to persons who design, manufacture or supply any such plant or substance. The intention is therefore to cover the circumstances under which plant (and substances) are made available for use or operation by persons at work, namely whilst within the work environment.

36 The word "plant" must be given an appropriate meaning within the overall context of these provisions. The appropriate meaning as far as I have been able to discern on the basis of such authorities as have been made available to me by counsel for the prosecutor and the defendant emphasises that the word extends to fixture, implements and apparatus used in carrying on the work processes rather than the products of work processes or the objects on which the work processes are being carried out. This approach accords with that of Lord Diplock in Haigh as reflected in the extract set out in para 27 above.

37 For these reasons it is my opinion that the truck and the equipment attached to it was not "plant …. which had been provided for the use or operation of persons at work ….". The equipment including tools used by the employees of Tibby Rose Auto to carry out the repairs, the facilities in the nature of benches, stools and the like were all plant. However the truck upon which they were working in order to effect repairs to it was not plant which had been provided for their use or their operation in carrying out their work.

38 In reaching this prima facie conclusion I take into account the fact that the obligation imposed by s 17(1)(b) is limited to circumstances where control (albeit to any extent) of the plant is retained by the person whilst it is situate in non-domestic premises provided for the use or operation of persons at work.

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.

40 I doubt whether s 53 would arguably be available as a defence. It would be reasonably practicable to comply with s 17(1)(b) by having the computer repaired and the electrical fault remedied before giving it to the repairer. By the same token, if the repairer's employee suffered an electrical shock it would be difficult for me to argue that I had no control over the situation and it was impracticable to make provision against that happening. Again, having the item repaired would resolve the problem. I raise this matter not necessarily as an aid to construction but as a means of testing the approach to construction contended for by the prosecutor in these proceedings.

41 Mr Kintominas put this proposition in a different way in written submissions. He said: "If the word 'use' in the section can be extended to cover repair for reward then it can be extended to cover other bailment for reward such as safe-keeping. If an auto electrician who repairs the electrical system of plant can be said to be using the plant then so can a bailee who receives plant for storage. By accepting plant for storage or safe-keeping he is presumably using the plant to receive payment. It cannot be the case that the legislature intended that, where a bailee who has been provided with plant for storage or safe keeping, and goes ahead and uses that plant as plant , the person who provided the plant to the bailee would be caught by the section."

42 Neither counsel referred me to the Second Reading Speech, so I assume that there is nothing in that material which would assist in the resolution of the controversy raised by these proceedings.

43 Mr Reitano relied substantially on a judgment of Peterson J in this Court in Inspector Page v Woolworths Ltd and Growth Equity Services Pty Ltd (unrep CT 1044 and 1047 of 1993 9 September 1994). It is necessary that I consider his Honour's judgment in some detail. A four-year-old child had died when a timber column in a retailing trading area within the Carlingford Court Centre, Carlingford fell. The shopping centre was managed by Growth Equities Service Pty Ltd ("Growth Equities"). That company was charged with a breach of s 17(1)(b) of the Act. Ten timber triangular columns had been used to mark out trading areas occupied by two retailers. They had been stored in a storeroom at the centre and had been owned and used by a retailer who had since left the shopping complex. There was no issue that Growth Equities had control of the timber columns in that it had controlled the shop area in which they had been located.

44 His Honour considered whether it was necessary that there must have been an intention that the plant be used or operated by persons at work in connection with its provision. His Honour rejected such a construction holding that all that was necessary was that the plant be available for use "regardless of actual intent at any given time. Here the columns were lying flat in store but they remained columns available for use as such. In every sense, then, Growth Equities provided the columns for use by relevant persons." Although Mr Reitano relied upon this approach to construction to assist the prosecutor's case I do not regard his Honour's conclusion as one which is determinative of the issue in these proceedings. The issue here goes more to how one defines the word "plant" and as to whether it includes any item or article which employees are required to use or operate whilst performing their work duties or whether it has a more limited meaning as discussed above.

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."

46 Mr Reitano focused on the use of the word "employed" and his Honour's statement that plant was wide enough "to embrace the multiplicity of machinery and equipment which may be employed at a workplace." Mr Reitano submitted that this indicated that Peterson J concluded that any machinery and equipment which was used by employees could be plant, albeit it might be the subject of repair.

47 I am unable to accept the judgment of Peterson J as expressing any conclusion or view concerning the controversy which is at the root of these proceedings. His Honour was dealing with a quite different situation, far removed from the factual circumstances present in these proceedings. I apprehend his Honour to have determined that "plant" ought to be construed so that it extends to all machinery and items of equipment which are utilised by employees in and about carrying out their work. It is in this context that his Honour referred to a chair. It is in this context that his Honour referred to the provision of acid which, although a substance, is nevertheless caught up by s 17(1)(b). His Honour could not be taken to be including any equipment or items on which work was being performed as falling within what is plant for the purpose of that provision.

48 I conclude that notwithstanding the submissions of Mr Reitano, that the approach to construction of s 17(1)(b) adopted by Peterson J in Growth Equities is consistent with the approach which I prefer. Accordingly, I conclude that neither the truck nor its equipment was plant for the purpose of s 17(1)(b) of the Act and that this essential element of the charge has not been made out.

49 Although this finding is conclusive of the matter I should state for completeness that if I had held that the truck had been plant for the purposes of s 17(1)(b) I would have held that it had been provided for the use or operation of persons at work who were not employees of the defendant. I would also have held, as was not put in issue, that the truck was in non-domestic premises.

50 For the above reasons I uphold the submissions made on behalf of the defendant that it has no case to answer. The charge brought against the defendant is dismissed accordingly. I propose to reserve costs.

51 I grant liberty to apply with respect to the costs of these proceedings. I grant liberty to apply with respect to the remaining part of the proceedings against the defendant Exo Pty Ltd trading as Tibby Rose Auto. _____________________________

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