Inspector Covi v The Crown in the Right of the State of NSW - [2004] NSWIRComm 128 - NSWIRComm 1992 case summary — Zoe

NSWNSWIRComm

Inspector Covi v The Crown in the Right of the State of NSW

[2004] NSWIRComm 128

Industrial Relations Commission (NSW)|1992-11-09|Before: Boland J, Mr J

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1992-11-09

Before

Boland J, Mr J

Catchwords

04/02/2004
04/05/2004
04/06/2004
04/19/2004 DATE OF JUDGMENT: 05/28/2004

Source

Original judgment source is linked above.

Catchwords

04/02/200404/05/200404/06/200404/19/2004 DATE OF JUDGMENT: 05/28/2004

Judgment (193 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Inspector Covi v The Crown in the Right of the State of NSW (NSW Police) [2004] NSWIRComm 128 PROSECUTION Inspector Paul Covi PARTIES : DEFENDANT The Crown in the Right of the State of NSW (NSW Police) FILE NUMBER: IRC 2013 of 2002 CORAM: Boland J CATCHWORDS : Occupational Health and Safety - Prosecution under section 15(1) of the Occupational Health and Safety Act - Police officer struck by vehicle whilst roadside speed detection and enforcement duties - Plea of not guilty - Elements of the offence - Causal relationship - Defence under s 53 of the Act - Offence proven LEGISLATION CITED : Occupational Health and Safety Act 1983 Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Insp Guillarte) (2001) 110 IR 57 Inspector Anthony John Davies v Prospect Electricity (unreported, CT747 of 1991, 9 November 1992 CASES CITED : Inspector Kenneth John Barnard v Rail Infrastructure Corporation (2001) 109 IR 209 WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268 WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited (2002) 123 IR 121 HEARING DATES: 04/01/2004; 04/02/2004; 04/05/2004; 04/06/2004; 04/19/2004 DATE OF JUDGMENT: 05/28/2004

[142]

36 In WorkCover v Police Service (No 2) Hungerford J observed at [23]-[24] the following: 23 I do not doubt, and neither do I think does the defendant, that police officers engaged on operational duties will be faced with risks to their safety. However, it is no answer to say, but as did Mr Hastings , that "the objective facts causing the detriment to safety were not the absence of speed loaders or a pistol or any deficiencies in the radio communication system or training, but the actions of McGowan, with which there was no causal connection to the employer" and "it is impossible to guarantee or to ensure the health and safety of police officers, and you can provide them with all the equipment under the sun short of an armoured vehicle and they will always be exposed to risk. Even if you did all the things that the prosecution has alleged were not done here & those things had absolutely no bearing on the safety of Senior Constable Spears because he was simply surprised and ambushed before any of these factors had any capacity to come into play". Workplaces in very many industries have the potential to be unsafe and, to meet that situation in the interests of the well-being of employees, the legislature has created the absolute duty on employers in s 15, subject to the s 53 defence, to ensure the health, safety and welfare of those employees at their place of work … 24 Although the defendant may not be able to "control", or otherwise affect, the conduct of persons such as Mr McGowan who confront police officers from time-to-time in the performance of their duties, the defendant is able to directly control and dictate the measures which should properly be made in preparing and equipping police officers to perform operational duties which are of such a nature as will ensure the health, safety and welfare of those officers. In the same way, and notwithstanding the submissions of Mr Hastings to the contrary, comparable steps should be taken by employers in satisfying the statutory duty in respect of their employees liable to the effects of unlawful action by criminals, such as, as identified by Mr Hastings , those employees engaged in "service stations, pharmacies, shops, banks, cash delivery, cigarette trucks, buses and taxis". In identifying those occupations, Mr Hastings submitted as to them that "there is a known history of violent and unlawful attacks by criminals, for which negligible precautions are provided by employers". Senior counsel added that in the emergency services (fire brigade, bush fire brigade and emergency services) the " employees are inevitably exposed to the risks of injury and death by the very nature of their duties" so that "employees are routinely exposed to the risk of, and suffer, the risk of injury and death from fire and flood, for which negligible precautions are taken". There is no evidence before me, I have to say, to support such a submission and, in any event, I would be most concerned that where employees are routinely exposed to risks to their safety that the employer concerned did not take the necessary steps to ensure their safety. The submission is no answer to the present charges. I reject it.

[149]

43 As to these failures alleged in the particulars, the evidence revealed that LIDAR speed detection operations involved the following: (a) A resource manual containing operational guidelines relating to the use of the Pro Laser II unit and a list of restrictions concerning the location and operation of the unit, none of which relate to safety considerations. There was no written risk assessment or work method statement as to the risks associated with stepping onto the carriageway. There was no indication that in compiling the resource manual the defendant had turned its managerial mind to the risks associated with the conduct of roadside speed detection and enforcement duties. The officers conducting the operation at the site made any assessment as to risk based on their skill and experience. (b) The use of police officers trained in the use of the unit and trained in stopping procedures described earlier in this judgment. Stepping onto the carriageway was a matter left to the discretion of the individual police officer; it was not a requirement but it had clearly developed into a common practice known to the defendant and permitted by the defendant. (c) Officers were advised they should "consider carefully the stopping procedure before operating the Laser, if in doubt about safely stopping an offender let him go - your safety is more important". Apart from this general exhortation, no training was provided with the objective of ensuring the health and safety of officers conducting roadside speed detection operations and in particular, no training was provided in relation to: (i) the conduct of the LIDAR operations apart from a one day course that contained no substantive materials regarding the planning or safe conduct of a LIDAR operation; (ii) where officers were to stand when directing the drivers of vehicles to stop their vehicles; (iii) the use of early warning signs in conjunction with LIDAR operations for the purpose of alerting drivers to the possible presence of police officers on the carriageway.

[182]

71 The defendant pleaded a defence under s 53(a) of the Act. In WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited (2002) 123 IR 121 the Full Bench considered the requirements of s 53 as follows: 83 There was no question that the respondent had the requisite control over the worksite and, therefore, s53(b) does not arise. Rather, the respondent submitted it had done all that was reasonably practicable. As to what is required when considering a defence under s53(a), regard should be had to the judgment in WorkCover Authority of New South Wales (Inspector Byer) v Cleary Brothers (Bombo) Pty Ltd (2001) 110 IR 182: [87] It is evident from these authorities that what is required by s53(a) of the Act is a balancing of the nature, likelihood and gravity of the risk to safety occasioning the offence with the costs, difficulty and trouble necessary to avert the risk. At one end of the scale, it could not be reasonably practicable to take precautions against a danger which could not have been know to be in existence: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd at 362. Similarly, if the happening of an event is not reasonably foreseeable then it will not generally be reasonably practicable to make provision against that event: see WorkCover Authority of NSW (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381; WorkCover Authority of NSW v Kellogg (Aust) Pty Ltd at 259 and Austin Rover Ltd v Inspector of Factories at 627 per Lord Goff and at 635 - 636 per Lord Jauncey of Tullichettle. [88] At the other end of the scale, there will be cases, such as the present, in which known or obvious risks to safety exist. In these circumstances, the defendant will not have established a defence under s53(a) of the Act where it was reasonably practicable to have complied with the Act by ensuring that persons were not exposed to those risks. This may be the case because no measures were reasonably available or because measures which were available were not reasonably practicable. As has been discussed, the assessment of the reasonable practicability of those steps requires a balancing of the quantum of the risk with the sacrifice (in money, time and trouble) in adopting the measures necessary to avert the risk. In my view, where there is a known risk which entails the potential for serious injury to persons in the workplace, the defendant will generally have to demonstrate that the costs, difficulty or trouble occasioned by the measures significantly outweigh the risk. This must be done by reference to the charge as brought by the prosecutor. 84 Those passages were subsequently approved by the Full Bench in Legge v Coffey Engineering Pty Ltd (No 2) (2001) 110 IR 447 at [38] and in Bultitude v Grice at [71]. 85 It may well arise that due to the exigencies of a particular work situation, it may have been impractical to have developed a safe system of work in advance. The particular circumstance may not have been a matter that was reasonably foreseeable in the way that phrase has been used in the authorities: see Bultitude v Grice (at [68]): Reasonable foreseeability of a risk or detriment to safety is relevant to the extent that it assists in determining whether it was reasonably practicable to avoid the risk. 86 Regard should be had in this respect to the judgment in Kellogg (No.1) (adopted by the Full Bench of the Court in Kennedy-Taylor v WorkCover Authority (at 82), Genner Constructions (at [67] - [68]) and Bultitude v Grice (at [68])): To establish a defence under s53, the defendant must prove, to a civil standard, either that it was not reasonably practicable to comply with the Act or that the commission of the offence was due to causes over which the defendant had no control and against the happening of which it was impracticable to make provision: see Drake at 48-49; Sydney City Council v Coulson (1987) 21 IR 477 at 480; and Italo Australian Construction Pty Limited v Parkes (1988) 24 IR 428 at 431. So much was accepted by the defendant in this case.

Inspector Covi v The Crown in the Right of the State of NSW

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Judgment (193 paragraphs)

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Cases Cited (12)

Cited By (6)