Inspector Ching v Bros Bins Systems Pty Ltd

APPELLANT Mr R Reitano of counsel Solicitor: Ms R Parmegiani WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: RESPONDENT Mr P Kintominas of counsel Solicitor: Mr J J Castrission Castrission & Co

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH

CORAM: WRIGHT J, President WALTON J, Vice-President BOLAND J

Matter No IRC 6649 of 2002 INSPECTOR BARNABAS CHING v BROS BINS SYSTEMS PTY LTD

Application by WorkCover Authority for leave to appeal and appeal against a decision of Justice Marks given on 5 November 2002 in Matter No IRC 5012 of 2001 JUDGMENT OF THE COURT [2003] NSWIRComm 386

1 This matter concerns an application for leave to appeal and appeal by Inspector Barnabas Ching of the WorkCover Authority of New South Wales ("the appellant") pursuant to s 197A of the Industrial Relations Act 1996 against the judgment of Marks J in Inspector Ching v Bros Bins Systems Pty Ltd [2002] NSWIRComm 276 in which his Honour found that Bros Bins Systems Pty Ltd ("the respondent") had no case to answer in relation to a charge under s 17(1)(b) of the Occupational Health and Safety Act 1983. His Honour accordingly dismissed the charge.

2 The charge against the respondent under s 17(1)(b) of the Act alleged that it "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." The particulars of the charge were: (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 A succinct account of the factual background to this matter is provided by Marks J at pars [4] to [6] of his judgment: 4 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.

4 His Honour began his consideration by having regard to the relevant provisions of the Act, including the objects of the Act and the context in which s 17 operates (at pars [9] - [21]). After finding that that there was "clear … evidence that the defendant retained some control over the truck while it was within the premises of Tibby Rose Auto", his Honour considered the requirement that the truck be "plant" within the meaning of s 17(1)(b) in the following terms: 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.

5 His Honour concluded that the definition of plant contained in s 4 of the Act was an inclusive definition and was intended to have wide application with respect to the items and articles that are covered. However, it did not "assist in determining the fundamental issue which is raised by these proceedings". His Honour found there was more value in examining the requirement contained within s 17(1)(b) that the plant must have been provided for the use or operation of persons at work (at pars [30] - [31]).

6 In construing the phrase "use or operate", his Honour reviewed the decided cases dealing with the "use of a motor vehicle" before concluding: 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".

7 In arriving at his conclusion the respondent had no case to answer, Marks J said in his judgment at pars [36] to [38]: 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.

8 Marks J referred to the prosecutor's reliance on a judgment of Peterson J in Inspector Page v Woolworths Ltd and Growth Equity Services Pty Ltd (unreported, CT 1044 and 1047 of 1993, 9 September 1994). In relation to that judgment his Honour said at pars [43] to [49]: 43 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.

9 The grounds of appeal were framed as follows: 1. His Honour erred in finding that the truck and equipment attached to it was not "plant … which had been provided for the use or operation of persons at work …" 2. His Honour erred in failing to find that the truck and the equipment attached to it was plant within the meaning of section 17(1)(b) of the Occupational Health and Safety Act (sic) 1984. 3. Upon such other grounds as the Commission considers appropriate.

10 The appellant submitted that leave should be granted for a number of reasons including: 3. Marks J has plainly and obviously erred in finding that the hook lift truck was not plant for the purpose of section 17(1((b) of the Act. 4. There are important policy considerations that underlie the need to grant leave in circumstances where an acquittal has been obtained by reason of a misapplication of the words of the Act. In particular, the important nature of social legislation such as the Act and its proper application warrants the grant of leave to appeal. 5. The basis for the grant of leave in this case is the same as the basis for which leave was granted in Inspector Bultitude v Grice Constructions Pty Ltd [2002] NSWIRComm 20 and in Inspector James Moore v Blacktown City Council [2003] NSWIRComm 47 save that this matter concerns the proper construction of section 17(1)(b) rather than section 53. 6. The proper meaning of the word "plant" in section 17(1)(b) is in itself an important question of public importance that has not been authoritatively determined by a Full Bench of this Commission (or its predecessors). 7. The decision appealed against would leave the prosecutor aggrieved as well as other defendants because the defendant in this case had been wrongly acquitted by reason of a serious error of principle.

11 The respondent opposed the granting of leave to appeal. Mr P Kintominas of counsel for the respondent contended that the appellant's characterisation of the error committed by Marks J was not substantiated; that in any event, there were no substantial policy considerations as to the proper construction of s 17(1)(b) justifying the grant of leave as the Occupational Health & Safety Act 1983 has been repealed. Section 10(2) of the Occupational Health & Safety Act 2000 had replaced, inter alia, s 17(1)(b). The provision in the 2000 Act does not include the words "which has been provided for the use or operation of" as used in the 1983 Act and there was also no equivalent qualification in the 1983 Act to s 10(4)(b) of the 2000 Act. 12 The respondent submitted that this case did not raise for consideration the meaning of the word "plant". The real issue for determination was whether s 17(1)(b) of the 1983 Act was meant to cover a situation where an item, being plant in the business of A, is given to the employees of B so that they may repair that item. It was submitted that the appellant failed to provide any effective answer below and on appeal to the respondent's contention that the section contemplated that the item that had been provided to the other person's employees had been so provided for use as "plant".

13 It was submitted that the Court should take into account the question of delay in exercising the discretion to grant leave; that it was now approaching four years since the date of the incident, which took place on 22 November 1999. The accumulation of delays in a criminal prosecution can constitute oppression even if the delays are not occasioned by any blameworthy conduct by the prosecution. 14 Appeals under s 197A are governed by the ordinary provisions as to appeals under Pt 7 of Ch 4, other than s 196, including the requirement in s 188 of leave to appeal and s 191 as to the nature of the appeal: Bultitude v Grice Constructions Pty Limited (2002) 115 IR 59.

15 The principles governing leave to appeal were authoritatively stated in Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380, 381-382. Leave to appeal will not be lightly or automatically be granted and will be restricted to cases that meet the public interest test stated in s188(2) of the Industrial Relations Act 1996. It will be relevant to consider the nature of the issues raised in the appeal, including whether the appeal raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application. The importance of considering the public interest in appeals pursuant to s 197A was noted by Walton J, Vice-President and Boland J in Inspector Moore v Blacktown City Council [2003] NSWIRComm 47 where their Honours stated at [15]: We would add that the nature of an appeal under section 197A of the Industrial Relations Act , being an appeal from an acquittal to a charge brought under the Occupational Health and Safety Act , amply demonstrates why a public interest test is appropriate when considering whether leave to appeal should be granted in such cases pursuant to s188 of the Industrial Relations Act.

16 The nature of an appeal under s 197A of the Act was considered in WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 where Walton J, Vice-President and Boland J, concluded at [20] "that an appeal brought under s 197A is an appeal stricto sensu on both fact and law and not by way of a hearing de novo". Kavanagh J dissented in the case but agreed on this point. The approach on appeal is, therefore, to determine whether the trial judge committed appealable error, bearing in mind that the particular principles applicable will vary according to the nature of the decision the subject of appeal, such as whether the appeal is from a discretionary decision or a finding of fact: Bultitude v Grice Constructions Pty Limited (2002) 115 IR 59 at [57] and Legge v Coffey Engineering Pty Ltd (No 2) (2001) 110 IR 447 at [14].

17 Section 17 of the 1983 Act provides: 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).

18 Section 10 of the 2000 Act which is the comparable provision of s 17 is in the following terms: 10. Duties of controllers of work premises, plant or substances (1) A person who has control of premises used by people as a place of work must ensure that the premises are safe and without risks to health. (2) A person who has control of any plant or substance used by people at work must ensure that the plant or substance is safe and without risks to health when properly used. (3) The duties of a person under this section: (a) do not apply to premises, plant or substances used only by employees of the person, and (b) do not apply to premises occupied only as a private dwelling or to plant or substances used in any such premises, and (c) extend to the means of access to or exit from a place of work, and (d) apply only if the premises, plant or substances are controlled in the course of a trade, business or other undertaking (whether for profit or not) of the person. (4) In this section, a person who has control of premises, plant or substances includes: (a) a person who has only limited control of the premises, plant or substances (in which case any duty under this section applies only to the matters over which the person has control), and (b) a person who has, under any contract or lease, an obligation to maintain or repair the premises, plant or substances. 19 The appeal raises squarely for consideration the interpretation that is to be applied to s 17(1)(b) of the Act. Whilst it is the case that the 1983 Act has been repealed and replaced by the Occupational Health and Safety Act 2000 we note that although there are important differences in the wording between s 17(1)(b) and its counterpart in the 2000 Act, namely s 10(2), there are also distinct and relevant similarities. Moreover, given that we have formed the view that Marks J erred in his interpretation of s 17(1)(b) of the 1983 Act, we consider it is in the public interest that the error be corrected to avoid the prospect that an erroneous approach be taken to the interpretation of s 10(2) of the 2000 Act by reference to his Honour's judgment.

20 Mr R Reitano of counsel appeared for the appellant. He submitted that the definition of "plant" in s 4 of the Act to include "any machinery, equipment and appliance", was a wide one given its inclusive nature and use of the word "any". It is not entirely clear why his Honour read down the definition because the definition in s 4 was inclusive. This was particularly so it was submitted, given the approach in the case law where the word "includes" is interpreted as an intention by the legislature to enlarge the ordinary meaning of the word: see, for example, Sherritt Gordon Mines v FCT (1976) 10 ALR 441 at 445.

21 In any event, it was submitted, his Honour's approach had the effect of allowing the character of the hook lift truck to change depending on whether it was being used in the process of carrying out its usual work (collecting garbage), or whether it was being driven to transport a person from one place to another, or whether it was being used or operated on for the purposes of being repaired. It was submitted that such a construction disregarded the clear and unambiguous language of the Act as well as the legislative intent.

22 The appellant questioned his Honour's conclusion given that he found at par [35] of his judgment, that the intention of the ss 17 and 18 of the Act was to cover the "circumstances under which plant are made available for use or operation by persons at work, namely within the work environment".

23 In relation to the decision of Peterson J in Inspector Page v Woolworths Ltd and Growth Equity Services Pty Ltd (unreported, CT 93/1044 and 1047, 9 September 1994), the appellant submitted that Marks J concluded correctly 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". However, it was not clear why his Honour then considered that the hook lift truck did not fall into that category.

24 It was submitted that the hook lift truck was in substance no different from the columns that were in issue in Inspector Page v Woolworths Ltd and Growth Equity Services Pty Ltd. The fact that the plant was not plant being used or operated for the purposes of some production process at the time the incident arose rendered it no less or no more "plant" for the purpose of the Act.

25 In any event, in the circumstances of this matter, it was submitted the truck still fell within the ordinary meaning of "plant" being used or operated for the purpose of a production process (the repair of the hook lift truck) albeit that that was not the process in which it was ordinarily used.

26 The respondent submitted that an item which was the subject of bailment for repair has never been judicially characterised as plant in the bailor's business: see for example Blake v Shaw (1860) John 732 at 734 and Yarmouth v France (1887) 19 QBD 647 at 658.

27 The respondent relied on the statement of Lord Diplock in Haigh v Charles W Ireland Limited [1973] 3 All ER 1137 at 1147 where he distinguished plant from "the objects on which the process is carried out" as support for the contention that an item on which a repair is to be effected by a business carrying on trade as a repairer of such items is, similarly, not plant.

28 It was submitted for the respondent that a major flaw in the appellant's construction of s 17(1)(b) was that it would make it impossible for any person to have a potentially dangerous fault in any item, machinery or equipment associated with their business, repaired by the employees of another entity as that person could only discharge their duty under s 17(1)(b) by having the item repaired before giving it to the repairers. This absurd consequence could not have been intended by the Legislature nor could it be avoided by merely relinquishing possession of the item, given that control is defined as the ability of a person to compel corrective action to secure safety: McMillan Britton and Kell v WorkCover Authority of New South Wales (Inspector Blake) (1999) 89 IR 464 at 480-1. Therefore, it was submitted, the proper construction of the section was that it applied only in situations where the plant had been provided to the employees of another for use as plant.

29 The fact that the words of qualification "for use or operation as plant" do not appear in s 17(1)(b), does not defeat the argument, as the ellipsis of words of qualification often occurs in statutory provisions and their inclusion to reinforce what is a matter of common sense, is unnecessary: Thomas v Jakacic (1983) 34 SASR 425.

30 It was submitted that in the event of ambiguity, resort should be had to the principle that a penal statute should be construed strictly. In rebutting this submission, the appellant relied on the High Court's decision in Waugh v Kippen (1986) 160 CLR 156 at 164-165. The respondent submitted that the issue in Waugh v Kippen was a case where the class of persons who owed a duty under the relevant statutory provision was not in doubt and the issue to be determined was the extent of that duty. Waugh v Kippen is distinguishable as the question to be resolved in the present case is whether a certain class of persons comes within the section at all, that is, the identification of the class of persons upon whom the section casts a duty, not an identification of the extent of that duty. The High Court's conclusions do not justify an approach to construing s 17(1)(b) in such a way as to catch within its parameters, persons whom it cannot be said with certainty the legislature intended to be so caught. Further, it is a matter of fundamental importance that any citizen must be able to know and understand whether a duty imposed by a statutory provision with a penal sanction applies to them.

31 Section 17(1)(b) imposes an absolute duty upon persons who have, to any extent, control of 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) to ensure that the plant or substance is safe and without risks to health.

32 The question to be determined on appeal is whether, for the purpose of s 17(1)(b) of the Act, the respondent's hook lift truck was "plant … which has been provided for the use or operation of persons at work" in the context of it having been provided to Tibby Rose Auto by the respondent for the purpose of undergoing repair.

33 In Mainbrace Constructions Pty Ltd v WorkCover Authority of NSW (Inspector Charles) (2000) 102 IR 84 the Full Bench considered the meaning of the phrase "place of work" in s 16(1) of the Act: 58 To adopt the interpretation put forward by the appellant, namely, that the words "place of work" in s 16(1) are not capable of bearing a construction to include "means of access to or egress from", would have the result of relieving an employer of any liability which would otherwise exist under s 16(1) if it could be shown that the subject persons, at the material time, were using a means of access to or egress from a location where they performed work. Moreover, if that place of work could not be said to be under the control of the employer then s 17 of the Occupational Health and Safety Act would also have no application. Section 15 would have no application because that section only deals with the obligations of employers to their own employees. No other section in the statute would have application. 59 The consequences of adopting the appellant's interpretation would be to create a significant loophole in the legislation which we do not consider can be justified. 60 It is clear that, in interpreting the obligations under s 16, the Court must take into account the purposes of the legislation. The basis of this approach was set out by Hungerford J in Kirkby v A & M I Hanson Pty Limited (1994) 55 IR 40 at 49-50 and applied recently by Hungerford J in WorkCover Authority of New South Wales (Inspector Hannan) v Bitupave Limited trading as Boral Asphalt (2000) 98 IR 246 at pars 18-19. In Kirkby , Hungerford J considered the question of general purpose and concluded in relation to s 16(1) at 49-50: I think it notorious that workplaces have the potential to be unsafe and building sites, by their inherent nature, are certainly no exception. It may be undoubted, it seems to me, that the legislature had that in mind in enacting the Occupational Health and Safety Act which, as its long title states, has the purpose "to secure the health, safety and welfare of persons at work"; the objects of that Act in s 15(1) emphasise the point. And, so, Div 1 - General Duties of Pt 3, which includes s 16(1), of the Occupational Health and Safety Act was passed to effect the apparent purpose by creating absolute obligations on the relevant persons to remedy and protect against the perceived mischief of risks to health, safety and welfare in the workplace. Section 16(1) forms part of that statutory purpose and, I think, represents an instance of the legislature's concern to improve safety in the working environment. The High Court ( Mason , Wilson , Brennan and Dawson JJ, with whom Gibbs CJ agreed) observed in McLean v Tedman (1985) 155 CLR 306 at 313: "Accident prevention is unquestionably one of the modern responsibilities of an employer." The approach was furthered by Mason , Wilson and Dawson JJ when their Honours said in Bankstown Foundry Pty Limited v Braistina (1986) 160 CLR 301 at 309: "In so far as legislative requirements touching industrial safety have become more demanding upon employers, this must have its impact on community expectations of the reasonably prudent employer."

It is my view that the nature of the duties, and hence the question of whether an employer has offended against s 16(1), are to be construed in that context. As was stated by Lord Shaw in Butler v Fife Coal Co [1912] AC 149 at 178-179: "The commanding principle in the construction of a statute passed to remedy the evils and to protect against the dangers which confront or threaten persons or classes of His Majesty's subjects is that, consistently with the actual language employed, the Act shall be interpreted in the sense favourable to making the remedy effective and the protection secure. This principle is sound and undeniable." Again, and to a similar effect, Isaacs J commented in Rice v Henley (1914) 19 CLR 19 at 22: "In interpreting an Act which is directed to guarding against accidents and to the preservation of human life I think one should endeavour to carry out the objects of the legislature as far as the language of the Act will reasonably permit." 61 We can see no basis in s 16, or in the statute read as a whole, for limiting the meaning of "place of work" as that term is used in s 16(1) to exclude a ceiling located within the place of work which also happens to have been used as a means of access to and egress from designated construction areas. To do so would, in our opinion, be inconsistent with the purpose of the legislation.

34 We consider the approach of the Full Bench in Mainbrace Constructions to construing the statute is the correct approach and accordingly we adopt it in this case. In this respect it may be observed that s 5(1) of the Act provides that two of the objects of the 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 The Act proceeds to set out comprehensive provisions, including in particular ss 15, 16, 17, 18 and 19 designed to achieve those objectives.

35 The respondent in these proceedings would not be amenable to prosecution under s 15 of the Act because the risk did not arise in relation to an employee of the respondent. Similarly, s 16 would not apply because the risk did not arise at the respondent's place of work. Section 18 would have no application because the respondent was not a designer or manufacturer of the hook lift truck and we do not consider that the respondent could be regarded as a supplier. Section 19 is not relevant.

36 If s 17 of the Act has no application then it must follow that one or both of the objects in s 5(1)(a) and (b) of the Act is defeated in the circumstances of this case. The Occupational Health and Safety Act 1983 is an elaborate safety code the objectives of which are to secure the health, safety and welfare of persons at work and 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.

37 We do not consider that it was the Legislature's intention that where a person sends plant for repair in non-domestic premises, and where the plant remains to any extent under that person's control, that there should be no obligation on that person to ensure the plant is safe and without risks to health.

38 Marks J in his judgment found that word "plant" extended 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 …

39 The statute that was the subject of consideration in Haigh was the Factories Act 1961 (UK). The term "plant" was not defined in that statute and it is understandable that Lord Diplock resorted to the dictionary definition of the term in order to understand its meaning. Under the Occupational Health and Safety Act, however, "plant" is defined in s 4(1) as including "any machinery, equipment and appliance" (our emphasis).

40 On the approach taken by Marks J "plant" is limited in its application to "fixture, implements and apparatus used in carrying on the work processes". This would exclude the product of work processes and objects on which work processes are carried out, notwithstanding these products and objects may be machinery, equipment or appliances that have been provided for the use or operation of persons at work. We can see no basis, given the nature of the statute and its objects, for reading down the definition of "plant" in this way. We consider the approach taken by Peterson J in Growth Equities to the question of what is "plant" for the purpose of s 17(1)(b) is correct.

41 The respondent contended that the appellant's interpretation of s 17(1)(b) would make it impossible for any person to have a potentially dangerous fault in any item, machinery or equipment associated with their business, repaired by the employees of another entity as that person could only discharge their duty under s 17(1)(b) by having the item repaired before giving it to the repairers. There are two answers to this contention. Firstly, s 17(1)(b) imposes a duty on a person to ensure the plant is safe in circumstances where the person has to some extent control over the plant. If the relevant person has no degree of control over the plant the person cannot be held liable under s 17(1)(b).

42 Secondly, where the person has to some extent control over the plant that is sent out for repair, it seems to us that the person is in no different position, in terms of the person's duty to ensure safe plant, than an employer who has a duty under s 16(1) to ensure that persons not in its employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. In the former case the person might send out a dangerous piece of machinery for repair. If the person retains control to some extent over the piece of machinery the person will be required under s 17(1)(b) to ensure relevantly that it is safe. If an employer hires a contractor to perform repair work at the employer's place of work on a potentially dangerous piece of machinery that the employer does not have the skill or resources to repair, the employer is, nevertheless, required under s 16(1) to ensure relevantly the contractor's safety.

43 Section 17(1)(b) refers to plant that "has been provided for the use or operation of persons at work (not being the person's employees)". Given our view about the meaning of "plant" for the purpose of s 17(1)(b), the question is whether the hook lift truck was provided by the respondent for the use or operation of those persons given the task of repairing the truck. At par [49] Marks J stated that: [I]f 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.

44 It is not entirely clear what his Honour meant by this statement. It would seem, however, that his Honour was indicating that if he had held that the meaning of "plant" was not limited to machinery "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", he would have concluded that the truck had been provided "for the use or operation of persons at work who were not employees of the defendant". Given our view that "plant" for the purpose of s 17(1)(b) is not to be interpreted as being limited in the way described by Marks J, we consider that the truck was plant and was provided by the respondent to Tibby Rose Auto for the use or operation by persons at work. We note that his Honour accepted the truck was in non-domestic premises.

45 We find that the truck was "plant" for the purpose of s 17(1)(b). Accordingly, we find that Marks J erred in dismissing the charge on the basis that the respondent had no case to answer because "neither the truck nor its equipment was plant for the purpose of s 17(1)(b) of the Act".

46 We make the following orders: 1. Leave to appeal is granted. 2. The appeal is upheld and the order made by Marks J dismissing the charge in Matter No IRC 5012 of 2001 is set aside. 3. The matter is remitted to Marks J to be dealt with according to law. 4. The respondent shall pay the appellant's costs of the appeal as agreed or, failing agreement, as assessed.

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