Inspector Peter Kilpatrick v Jae My Pty Limited

APPELLANT: Mr DB O'Neil of counsel SOLICITORS: Carroll & O'Dea LEGAL REPRESENTATIVES: RESPONDENT: Mr BG Docking of counsel SOLICITORS: Bartier Perry

JUDGMENT: - 8 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH

CORAM: Wright J, President Schmidt J Staff J Wednesday, 28 April 2004 Matter Number IRC 5891 of 2003 INSPECTOR PETER KILPATRICK v JAE MY PTY LIMITED Application by WorkCover Authority of New South Wales for leave to appeal and appeal against the decision and orders of Chief Industrial Magistrate Miller given on 23 September 2003 in matter number 20209602/02 JUDGMENT OF THE COURT

1 This is an application for leave to appeal and, if granted, appeal from a judgment of the Chief Industrial Magistrate ('CIM'), given on 23 September 2003. The CIM dismissed a charge brought against the respondent under s16 of the Occupational Health and Safety Act 1983 ('the Act').

2 The application for leave asserted that the appeal raised important issues concerning the defences established by s53 of the Act in relation to systems of work and information, training, instruction and supervision as well as the proper understanding of the role of the acts of employees and others in prosecutions brought under s16.

3 The grounds of appeal included alleged errors of law and fact, going to the provision of a safe system of work and whether the defendant had done all reasonably practical to establish, maintain and promulgate such a system. It was also asserted that the CIM had erred in focussing too much on the accident, rather than on issues going to the defendant's breaches of the Act and the detriment to safety which resulted.

4 On 11 March, the respondent filed a notice of contention, alleging that the appellant had never laid a valid information; that the appellant had never had in his possession information which permitted him to suspect that an offence had been committed, for the purposes of s52 of the Justices Act 1902; and that proceedings had been pressed in relation to alleged failures, despite the allegations having never been adequately investigated.

5 The hearing was adjourned in order to enable the Full Bench to view a video in evidence before the CIM and for the appellant to file a written reply submission. The reply was filed on 24 March.

6 The particulars of the charge were: (a) It failed to provide and maintain systems of work which were safe and without risk to health for emptying of rubbish by subcontract cleaners at the back dock at the said premises to ensure that persons such as Ms Kang Soon Lee, would have a clear passageway and access to these bins located at the back dock at the said premises;

(b) It failed to provide such information, instruction, training and supervision of its subcontract cleaners including Ms Kang Soon Lee, to ensure that they would not attempt to move, operate or interfere with any machinery and, in particular, a pallet jack located at the premises for any reason unless instructed and allowed to do so.

7 His Worship noted that the charge had emerged from injuries sustained by Ms Lee, a cleaner employed by Mr Kim trading as MK Enterprises, which had contracted with the defendant to provide contract cleaners to clean Woolworths' stores. The injuries were sustained while Ms Lee was taking rubbish at a Woolworths' store to large bins at the rear of the store. An electric pallet jack had been left unattended near the bins, with the keys in it. Ms Lee attempted to move the jack to access the bins. The jack moved suddenly, going over the edge of the back dock at the premises. Ms Lee fell 1.5 metres over the edge with the jack, sustaining a broken hipbone, lacerations to her forehead and a broken right elbow. All the evidence before the CIM had been led in the prosecution case.

8 His Worship noted that at the close of the prosecution case, the defendant submitted that the prosecution should be permanently stayed; that the prosecution had failed to establish a prima facie case; it had not been proven beyond reasonable doubt and if it had, a defence under s53 of the Act had been established.

9 It was also argued by the defendant that the prosecutor had not established the particulars alleged beyond reasonable doubt, nor that the defendant's acts or omissions had created a situation of potential danger to the health and safety of Ms Lee. The failures alleged were not causally connected with the risk in question. On the evidence, the potential risk had arisen out of the causal actions of Ms Lee and Woolworths. The approach of Hungerford J in WorkCover Authority of New South Wales (Inspector Keelty) v The Crown in the Right of the State of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268 at 293 [27] was relied upon.

10 The CIM concluded that: 'In regard to Particular (a) the evidence of Mr Jim Lee, Mr Michael Kim and Peter Stephenson established that at both the commencement of Ms Lee's engagement at Kotara and also as a usual thing now and then, the cleaner was instructed and trained not to touch plant or merchandise of Woolworths. The system was always the case that the cleaner was to get Woolworths personnel to clear the passageway by getting help from an employee of Woolworths like the back door manager or duty manager. The cleaner was to leave rubbish in front of the machinery and not attempt to get to the bin if she could not locate Woolworths personnel to move the machinery. At the time of the incident, two employees of Woolworths were in the vicinity to move the pallet jack if called upon, namely Trainee Manager Daniel Wade and Mr Stephenson. Also present was Mr Shortland and in excess of 30 employees of Woolworths in the premises.

The evidence disclosed that if there was any problem the cleaner was able to contact Mr Kim or Mr Jack Lee, the father of Mr Jim Lee, if there were any problems. Mr Kim was responsible for implementing the defendant's system. He was trained in the defendant's system and was a supervisor of Ms Lee. The defendant conducted store visits to monitor the subcontractor and persons engaged. The employer's hands-on approach has worked because with close to 80 stores at the time and now over 120 stores, the employer has no prior convictions.

The evidence of Ms Lee caused me concern. Ms Lee told the Court that at the time of the incident there was a mess around the bins, which a person could not walk around. She added that she would on occasion take plastic bags out to the bin held in one hand, and on other occasions a trolley. Shown the security camera video of her incident, in effect Ms Lee denied it was video of her incident. Ms Lee told the Court that she tried to find someone to ask for help before she moved the pallet jack. However, there was no one in the dock area. The video shows that there was no mess in the area in question and at the time of the incident to Ms Lee at least two, if not three, Woolworths personnel were in the area who she could have asked to assist her. In such circumstances where there is a conflict in the evidence between Ms Lee and others, I accept the latter's version.

I am not satisfied at a prima facie level that the defendant failed to provide a safe system of work and has not done or omitted to do anything causally connected with this accident. However, it might be argued that the defendant failed to maintain its system by the very fact that there was an accident to Ms Lee.

In regard to the employer's duty to maintain a safe system of work referred to in regard to particular (a) I am satisfied that the defendant has proved on the civil standard: Firstly, that it did all that is reasonably practicable as it established, maintained and promulgated a safe system of work. It was the failure of Ms Lee to properly adhere to a system, which had been, established which led to the accident to her. Furthermore, the evidence proves that Mr Kim was a competent, trained and experienced supervisor engaged by the employer to police the implementation and application of the rules and procedures that were sufficiently systematic or comprehensive, containing appropriate detail. There was no indication that Mr Kim had failed in his duty.

Secondly, the acts and omissions of Ms Lee were inexplicable and not reasonably foreseeable. The cause of the accident was her casual and causal failures. Furthermore, in regard to the defendant before the Court, the acts and omissions of Woolworths and in particular Shortland, were inexplicable and not reasonably foreseeable. The cause of the accident was also Mr Shortland's casual and causal failures and the lack of formal instruction and training given to Mr Shortland by his employer in the operation of the pallet jack. In regard to the alleged failure as particularised in paragraph (b), I am not satisfied beyond reasonable doubt that the alleged information, instruction, training and supervision were not provided to Ms Lee. Both Mr Kim and Ms Lee conversed in the Korean language and had no difficulty in understanding each other. I also have doubts as to whether Ms Lee had any practical difficulty in sufficiently conversing in the English language.

For the above reasons the information is dismissed. In the circumstances there is no need to address the defendant's application for a permanent stay.

11 Given the conclusions reached, the CIM found it unnecessary to deal with the application made by the defendant for stay of the proceedings.

12 The case put for the appellant by Mr O'Neil of counsel was that the appeal raised significant questions of law and principles as to what could constitute sufficient steps to establish, maintain and promulgate a safe system of work and sufficient information, instruction and training, as well as the proper operation of s53 of the Act and the relevance of 'the accident' in prosecutions. An additional matter raised was a failure to properly apply the principles of WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited (2003) 123 IR 121 and Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Guillarte) (2001) 110 IR 57.

13 It was argued that the CIM had wrongly focussed on the accident, had failed to enter into a detailed analysis of the system of work and had failed to take account of relevant matters, including evidence as to Ms Lee's difficulties with the English language. The finding that the prosecutor had failed to satisfy the CIM to a prima facie level was submitted not to have been open on the evidence, nor was the conclusion that a safe system of work had been established. The CIM's approach was also argued to have involved a failure to have proper regard to the duties imposed by the Act.

14 The case put for the respondent by Mr Docking of counsel, was that leave to appeal would not be granted, because the principles applying to liability under ss15 and 16 of the Act, as well as the defences in s53 were well settled and no further clarification of them was required. A fair reading of the decision showed that it was consistent with well settled law and principles.

15 It could not be ignored that the CIM had not been satisfied at a prima facie level, that the respondent had failed to ensure safety, as the particulars alleged. It followed that the charge had not been dismissed as the result of a misunderstanding or misapplication of the s53 defence and consequently those principles did not arise for consideration on appeal.

16 The appeal was thus one going to findings of fact and/or law. The Court would only intervene if the CIM had fallen into error of law or had made a relevant error in fact finding. There was clearly no appealable error and there should be no interference with disputed conclusions of fact, unless they were not reasonably open on the evidence or were clearly wrong. The appeal points did not fall within the principles of House v King (1936) 55 CLR 499.

17 It was also submitted that the CIM had the advantage of seeing the witnesses. Credibility findings were made, which were not open to review except in the confined basis discussed in Devries and Anor v Australian National Railways Commission and Anor (1993) 177 CLR 472 at 479.

18 It was also relevant that the confusing and misguided case presented to the CIM, was persisted with on appeal. The appellant had failed to address on the two particulars of the charge. Arguments not advanced squarely at first instance should not now be permitted to be raised on appeal. The CIM's approach was consistent with the principle, that an incident and injury may well manifest the existence of a detriment to safety: Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 452-7.

19 It was argued that not every accident will result in a penal liability upon an employer: see McMartin v Broken Hill Proprietary Company Limited (1988) 100 IR 241 at 247. Appeal from acquittal was a rare right afforded the prosecution by Parliament. The Court should not grant leave in every such case.

20 Leave to appeal is never lightly or automatically to be given. The statutory public interest test must be satisfied: Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380. This requires particular consideration in cases of appeal against acquittal, where undoubted questions of double jeopardy arise: WorkCover Authority of New South Wales (Inspector Dowling) v Bournelis and Anor (2003) 124 IR 447 at 451-2.

21 We are satisfied that the appeal does not raise questions of principle, but rather whether errors of fact or law were such that leave to appeal should be granted. The CIM found that the two particulars of the offence alleged had not been established to the prima facie level. He also concluded that the defendant's acts and omissions were not causally connected with the cause of the accident. He came to that conclusion, having seen, with the consent of the parties, a video recording of the incident, as well as having considered the injured worker's evidence, which was in conflict with what was observed on the video and with aspects of the evidence of the other witnesses called by the prosecution. The CIM did not find the injured worker's evidence credible and where it conflicted with that of other witnesses, accepted their evidence.

22 The risk to safety in question was that posed by the CIM in his judgment, quoting from the prosecutor's submissions, as 'the risk of injury was the potential need to clear the passageway, to move items for that purpose and to move, operate or interfere with machinery for that purpose that prevents the risk to the health and safety of the persons present'.

23 The risk arose in connection with a cleaner, engaged to clean a Woolworths' store, during day time hours, when placing rubbish into large bins on a dock. The evidence was that the system was not documented and involved on the job instruction and training. The authorities have made well clear that not all systems of work must be documented: see for example Fletcher at 150. On the job training in particular work also be sufficient to ensure safety: see Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Guillarte) (2001) 110 IR 57 at 72-73. What safety requires depends upon the nature of, and circumstances under which, particular work is performed.

24 In this case the CIM found that the system, as established and maintained, involved the cleaner being instructed and trained not to touch any Woolworths' plant or merchandise; to get Woolworths' personnel to clear the passageway and to leave rubbish in front of the machinery and not to attempt to get to the bin, if she could not find such personnel to move the machinery. The CIM was also unable to doubt that the relevant instructions, training and supervision had been given, noting the Korean language spoken by both Ms Lee and her direct supervisor. He also found that he had doubts as to the employee's 'practical difficulty in sufficiently conversing in the English language'.

25 His Worship also found that at the time of the incident, there were two Woolworths' employees in the vicinity to call upon to move the jack, as well as its driver and 30 other Woolworths' employees in the store. While the injured employee's direct supervisor was not present at the time of the incident, he and others were contactable, if there was a problem. The CIM further found that the video showed, inconsistently with the injured employee's evidence, that there was not a mess around the bin and that there were two, or perhaps three Woolworths' personnel who the employee could have asked for assistance. His Worship's conclusion was that no prima facie case had been made out.

26 The CIM also considered the question of whether the accident itself might have shown that the defendant had failed to maintain its system. He did not conclude that this had been established. It was this conclusion and the reference to the cause of the accident, which gave rise to the appellant's submission that there had been an incorrect focus upon the accident, rather than the risk in question. There was, however, no error of principle involved in such a consideration. It is well settled that what has occurred in the context of an accident, may reveal the inadequacies of a particular system of work or training: see for example Genner at [60].

27 We are satisfied that it cannot be concluded from the judgment that the CIM failed to consider the risk in question, as the appellant complained. To the contrary, a fair and proper reading of the judgment as a whole puts that beyond doubt: see the discussion in Drake Personnel at 457-8. While reference was made by the CIM both to the incident and the accident and its cause, the conclusion that the risk was not properly considered, is not available. This conclusion is unavoidable, given that the CIM concluded that there was no prima facie case established, having expressly referred to the risk in question, in the terms advanced by the prosecutor at the hearing in response to the complaints advanced by the defendant, that the alleged risk had never been properly specified.

28 In Police Service of New South Wales (No 2), Hungerford J was considering, amongst other things, submissions that a prima facie case had not been made out. His Honour observed at [27] that in considering such a submission, it is necessary to consider each of the charges in turn, 'initially as to whether there was any evidence that the defendant had failed in terms of the particulars as alleged in the charges and, if so, whether there was a causal relationship or nexus between that failure and the consequent risk to the safety of the two officers'.

29 The position was that the CIM's consideration of the charge and the particulars turned on factual findings which depended in part upon credit. His Worship concluded that on the evidence, there was no prima facie case established. It follows that it was thus strictly unnecessary for him to turn to consider the question of causal nexus.

30 The conclusion that there was no prima facie case was reached in circumstances where all the witnesses were called by the prosecution. The injured worker gave evidence which conflicted, in some respects, with that given by employees of Woolworths, of the defendant and of the subcontractor who had employed the injured worker. It follows that, as in Bournelis, the advantage which the CIM had in assessing the witnesses and the competing factual matters is also one to which regard must be had in this case, when considering the question of leave. This conclusion is not affected by the fact that the incident happened to have been recorded on a static video maintained on the dock area by Woolworths. The video was tendered in the prosecution case. The injured employees' evidence was also inconsistent with what the video revealed and consistent with his Worship's conclusions.

31 The CIM dismissing the charge, after finding no prima facie case had been made out, involved no error of principle or of law, given the approach in Police Service of New South Wales (No 2), which the CIM was bound to follow. The conclusion depended upon factual findings which were open, in the context of a simple system, in which the employee had received on the job training and instruction, in the Korean language. The system involved the prohibition of a cleaner working during store operating hours, moving Woolworths' equipment when approaching a bin into which rubbish was to be placed. While there were inconsistencies in some of the evidence, as we earlier noted, the witnesses' evidence, including that of the employee herself, showed that she was aware of the system established and had acted in accordance with it, on other occasions. The CIM also concluded that her command of English was adequate for this purpose.

32 Somewhat unusually, the CIM's consideration of the conflicting evidence was assisted by the video in evidence, which demonstrated that the employees' explanation for her departure from the system was entirely inaccurate.

33 This no doubt explains the views which the CIM reached, when considering whether the necessary causal connection had been established and whether the accident might have revealed that the system was not maintained. His Worship concluded that in relation to that latter argument, the s53 defences had been made out in any event.

34 Given the admitted overlap in the two particulars of the charge and the various submissions which the parties addressed in relation to the case advanced for the defendant, at the close of the prosecution case, in relation to the application for stay of the proceedings, as well as the other arguments earlier referred to, that approach was understandable. It was, nevertheless, the case that strictly, it was also unnecessary for the CIM to have considered the s53 defences, given the conclusions which he had otherwise reached.

35 It follows that on appeal, the question of the application of the principles applying to s53 defences, such as those discussed in Fletcher, do not properly arise for consideration.

36 We are satisfied that in all of those circumstances, it cannot be concluded that the case is one in which leave to appeal should be granted. The CIM's conclusion as to a prima facie case turned on factual findings which were open. The public interest test has not been satisfied. Having come to that conclusion, we also find it unnecessary, as did his Worship, to consider the contentions raised by the respondent.

37 Leave to appeal is refused and the appeal is dismissed. The usual costs order would be that the appellant pay the respondent's costs, as agreed or assessed. If there is any disagreement about the terms of that order, the parties have liberty to apply, which should be exercised within 21 days. ------------------------

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