Inspector Vierow v Ridge Consolidated Pty Ltd

APPELLANT Ms P E McDonald of counsel WorkCover Authority of New South Wales (Ms R Panagoda) LEGAL REPRESENTATIVES: RESPONDENT Mr F C Corsaro SC Solicitors: Colin Biggers & Paisley (Mr N Crennan)

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: Wright J, President Walton J, Vice-President Marks J

Matter No IRC 1278 of 2002 INSPECTOR VIEROW v RIDGE CONSOLIDATED PTY LTD Application by WorkCover Authority of New South Wales for leave to appeal and appeal against a decision of Justice Peterson given on 8 February 2002 in Matter No IRC 3877 of 1999

JUDGMENT OF THE COURT (Extempore) [2002] NSWIRComm 254

1 This is an application for leave to appeal and an appeal, pursuant to s 197A of the Industrial Relations Act 1996, from a judgment of Peterson J arising from his Honour's decision to dismiss a charge brought against the respondent, Ridge Consolidated Pty Ltd.

2 The charge was in the following terms: On 29 August 1997 at a roadway construction site situated on the median of the M4 Motorway between Greystanes Road and Clunies Ross Road overpasses, Prospect, in the State of New South Wales, the defendant, being an employer, DID FAIL to ensure the health safety and welfare at work of all of its employees and in particular George Tseganis in that it failed to provide or maintain systems of work, for the coordination and direction of motor vehicles and pedestrians at the said construction site, that was safe and without risks to health, contrary to Section 15(1) of the Occupational Health and Safety Act 1983, in such case made and provided.

1. The defendant failed to designate and implement a Traffic Control person responsible for guiding and directing drivers reversing motor vehicles and to warn pedestrian employees of the impending approach of those vehicles. As a result of the said failure, George Tseganis was fatally injured. The charge was brought pursuant to s 15(1) of the Occupational Health and Safety Act 1983 and related to the death of an employee of the respondent, George Tseganis, which occurred on 28 August 1997 when he sustained fatal injuries as a result of being hit by a truck reversing whilst engaged in construction work on the widening of the M4 Motorway.

3 At the time of the accident the truck was required to reverse a distance of more than 200 metres down a narrow pathway marked out by concrete barriers. Mr Tseganis and another employee, a Mr Watson, were working on the carriageway over which the truck was reversing. The evidence was to the effect that Mr Watson and Mr Tseganis had a "buddy system" so that they would watch out for each other whilst engaged in their work. In particular they were engaged in measuring the depth of the roadway then being constructed.

4 Mr Tseganis immediately prior to the accident was stooped spray-painting a measurement on the road. Shortly before the deceased was struck by the reversing truck Mr Watson endeavoured to communicate with him to give advice to the effect that he was in imminent danger, but without success.

5 His Honour found the offence proven in that the defendant had failed to provide a person to direct and guide drivers reversing motor vehicles. His Honour then considered the provisions of s 53 of the Occupational Health and Safety Act which are as follows: 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.

6 After considering the evidence his Honour found that the defendant was entitled to rely on the defence provided by s 53(a). His Honour said, in the course of his judgment, that the respondent could not have foreseen that Mr Tseganis would not have heeded Mr Watson's warnings and as such the defence was made out. However, in the course of discussing the application of the defence his Honour observed that "had a person been made available, as the charge contemplates, to guide the truck driver, this sad event would not have occurred".

7 The charge contemplates that the respondent should have utilised a system of work involving the deployment of a person to guide the truck driver reversing the truck in circumstances where there was an obvious risk to injury; namely, that a person working behind the truck and in its reversing path may have been struck.

8 It is not necessary for us to review in detail the principles to be applied in considering the provisions of s 53(a). They are set out in para [71] of the recent judgment of the Full Bench of this Court in Bultitude v Grice Constructions Pty Ltd [2002] NSWIRComm 20. The Full Bench in that matter adopted the reasoning of Walton J, Vice President of this Court, in WorkCover Authority of New South Wales v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182.

9 Once Peterson J had determined that the respondent had been guilty of the charge in the way adopted, it was necessary in terms of considering any defence under s 53(a) to have regard to what steps were reasonably practicable and should have been taken by the respondent to comply with the obligation thus imposed by the Act. His Honour did not deal with the matter in this way.

10 It is clear that his Honour had found that the respondent had not established a safe system of work. His Honour's attention was focused on the utilisation of the "buddy system" and the system adopted by the defendant to warn employees at risk of injury who were working at the rear of the reversing truck. His Honour did not direct attention to the system of work which could have been utilised to warn the truck driver of any impending danger. In focusing on the foreseeability of the accident his Honour did not direct appropriate attention to the creation of the risk of injury and the test to be adopted under s 53(a); namely, the consideration of what was reasonably practicable in order to comply with s 15(1) of the Occupational Health and Safety Act so as to avoid that risk.

11 We conclude therefore that his Honour incorrectly applied the provisions of s 53(a) in that his Honour did not consider the question of reasonable practicability as to the offence charged. There was no evidence that it was not reasonably practicable to provide a person to guide and control the reversing truck.

12 Accordingly his Honour has fallen into error and the appeal should prima facie succeed. The question of the proper approach to the construction and application of s 53 is a matter of significant public importance. It follows that, because of the nature of the error discerned and the seriousness of the offence charged, leave to appeal must be granted.

13 The respondent submitted that there is power to remit the proceedings to the trial judge in the event that the appeal was successful, and argued that s 197A(8) and s 192(1)(c) of the Industrial Relations Act are to be read together. We have doubts as to the correctness of that submission but do not consider it necessary to resolve the issue in this appeal as we consider the proceedings should be finalised before the Full Bench.

14 We accordingly make the following orders 1. Leave to appeal is granted.

3. His Honour's decisions dismissing the charge and as to costs are set aside.

4. We find the charge brought against the respondent proven.

5. The proceedings are stood over to a date to be fixed for the parties to make submissions with respect to penalty and costs.

15 [After the Full Bench heard submissions from counsel, directions were made for the further hearing.]

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