CONSIDERATION
15The submissions on appeal fell into three main categories:
(a) the failure by the appellants to give an instruction to the driver not to participate in roadside servicing and/or repair was not causally related to the risk of Mr Phillips' health, safety or welfare because whatever action Mr Phillips was undertaking at the time could not be described as participating in either the servicing or repair of a motor vehicle;
(b) her Honour found that an instruction should have been given to the driver to remain clear of the vehicle and not approach the vehicle whilst repairs were being conducted but the phrase "remain clear of the vehicle" in the circumstances of the events of this accident was "so vague as to be meaningless". Her Honour was in error in finding that such a "nebulous" instruction should have been given without requiring it to be described and defined with much greater clarity;
(c) in dealing with the circumstances of Mr Phillips' fatal injury her Honour overlooked the essential fact that the accident occurred because of the inadequacy of the wheel chocks used by the repairer. Mr Phillips was standing beside the truck when it began to move and his act of running after the moving vehicle to prevent it travelling on to the highway was instinctive and could not be causally linked with the suggested instruction to stay clear of the vehicle. Mr Phillips could have been standing 30 metres from the vehicle yet the same accident would have resulted.
16There are two matters of general importance that might be dealt with before considering the three particular issues raised by the appellants. Firstly, the respondent complains that some submissions on appeal suffer from incurable defects and should therefore be rejected. The submission that the instruction to remain clear of the vehicle whilst under repair was "unclear and nebulous" was a submission never put below nor was it the subject of a request for further and better particulars: it was not until the appeal submissions were filed that an argument was found to be raised that such an instruction was unintelligible. Further, it was submitted that the appellants' contention that the driver's actions could not constitute participating in the servicing or repairing of the vehicle was an argument not put before the trial Judge. The appellants did not contest the accuracy of these matters raised by the respondent but asserted their entitlement to put these arguments on appeal.
17The point raised by the respondent to the appeal is well taken and is supported by longstanding authority. In Banque Commerciale S.A., en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 284, Mason CJ and Gaudron J stated:
It is necessary to note the decision in Water Board v. Moustakas. In that case an appellant was precluded from making a case that had not been made at trial, although the elements of that case had been pleaded and particularized. The decision in that case was rested on the rule that, unless all facts have been determined beyond controversy or the question is one of construction or law and it is expedient and in the interests of justice to entertain the point, a party may not take a point for the first time on appeal. See, generally, Suttor v. Gundowda Pty. Ltd;University of Wollongong v. Metwally [No. 2]; Coulton v. O'Brien v. Komesaroff. Some aspects of that rule appear to derive from public policy considerations directed to ensuring the finality of litigation. On the other hand, some aspects of the rule may have their genesis in estoppel by election in the conduct of litigation, although, if so, the relevant consideration is not that the other party is put in a worse position but that he or she may have been so placed. See, for example, Moustakas, where the refusal to allow the appellant to raise a new case was rested on "the possibility that the [other party] may, if it had been raised below, have wished to call evidence in response to it". So far as the rule may derive from public policy, the relevant consideration is that the case sought to be made on appeal is a new or different case from that which emerged at the trial. See Browne v. Dunn, cited with approval in Rowe v. Australian United Steam Navigation Co. Ltd.; Moustakas.
18In a further examination of the policy behind the rule referred to in Bank Commerciale, McHugh J in Tyson v Brisbane Market Freight Brokers Pty Ltd [1994] 68 ALJR 304 at 310-311, stated:
Here the defendant wishes to raise a case inconsistent with the issue which he tendered for determination at the trial. Except in the case where the parties have mutually abandoned the pleadings at the trial, the public interest in the finality of litigation requires that, unless some exceptional circumstance exists, a party must be refused leave to make a case on appeal which is inconsistent with his or her pleadings. As the majority of this court in Coulton v Holcombe pointed out, no court finds any satisfaction in refusing to allow a party to raise a point which might enable it to succeed in the litigation. But, as the court went on to say, the principles which govern the raising of new points ``have stood the test of time because they have been found to serve effectively the public interest in the fairness and expedition of the administration of justice''. We live in an era where the cost of litigation is beyond the means of ordinary citizens and where awards of party and party - and even indemnity - costs cannot fully compensate a party for the cost and worry of litigation. Because that is so, it is as important as ever that the established principles concerning the raising of new points be strictly applied and that the parties be kept to the issues which, by their pleadings, they raised for determination at the trial.
The Full Court gave consideration to the application of this principle as set out in Coulton v Holcombe (1986) 162 CLR in WorkCover Authority (NSW) (Inspector Maddaford) v Coleman (2004) 138 IR 21 but found the facts were such that the application of the principle was unnecessary to determine in that appeal as the relevant point been taken below. Although the point is well taken in the present appeal it is unnecessary to treat the appeal as being thereby determined. The Court has had the benefit of full argument on the matters raised by the appellants and is content to determine the appeal on the merits of those arguments.
19The second issue of general significance is the fact that the appellants argued the entirety of this appeal by focusing upon the actual accident involving the driver, Mr Phillips. At first instance, Kavanagh J, in dealing with other charges, drew attention to the fact that an offence under the Act directs attention to the risk to the safety of persons, including employees. The correct approach to proceedings under the Act were first spelt out by the previous Industrial Court in Haynes v CI & D Manufacturing Pty Ltd (1995) 60 IR 149. At p 157 et seq the Full Court stated:
Sections 15 and 16 of OHS Act are both concerned with failures to ensure the health and safety of persons at workplaces in terms inter alia of "risks" thereto; thus, the sections, even absent any actual accident causing death or bodily injury, nevertheless comprehend the commission of an offence where the relevant "detriment to safety" (as spoken of in Dawson and McMartin) is but a risk, or, in other words, where the circumstances are such that an employer's act or omission has created a situation of potential danger to the health and safety of persons at his workplace.
...
The stated purpose of the OHS Act being "to provide effectively for the safety, health and welfare of all persons in all workplaces" in which "enormous reforms in worker safety, health and welfare" will be achieved in "the protection of workers in their employment from all risks resulting from factors adverse to health" by placing "responsibility on employers to ensure that they operate in such a way as not to endanger their employees" may only be seen in the manner stated by us. The general duties created by the OHS Act, such as in ss 15 and 16, are clearly directed, we think, at obviating "risks" to safety at the workplace; it would therefore be wrong in considering whether an alleged breach of those general duties had been made out in any particular case to reason from the actual occurrence of an accident, even though causing death or injury, as the necessary detriment to safety and as to which a causal connection was to be shown. The accident itself may well, and probably does, manifest the existence of a detriment to safety and will, no doubt, be some measure of the degree of severity of the detriment: but, it seems to us, it is to the essential ingredients of the offence charged which one must attend by assessing the objective facts causing the detriment to safety and the causal connection therewith of the employer.
...
Sections 15 and 16 of OHS Act are both concerned with failures to ensure the health and safety of persons at workplace in terms inter alia of "risks" thereto; thus, the sections, even absent the commission of an offence where the relevant "detriment to safety" (as spoken of in Dawson and McMartin) is but a risk, or, in other words, where the circumstances are such that an employer's act or omission has created a situation of potential danger to the health and safety of persons at his workplace. ...
20Importantly, the approach set out in C I & D (having regard to its fate in the Court of Appeal on unrelated matters) was specifically adopted by the Full Bench in Drake Personnel Ltd t/as Drake International v WorkCover Authority of NSW (Inspector Ch'ng) [1999] 90 IR 432 at 452. This statement of principle has since been followed and applied in numerous cases arising under the Act either directly or in terms that are largely consistent with that analysis of the 1983 statutory provisions in Drake. Despite this longstanding approach (which was not called into question at first instance or on appeal), the case for the appellants in each of its three limbs continually returned to the precise circumstances of the accident rather than addressing the risk raised in the charges as particularised. Notwithstanding that the application of these two long recognised principles goes to the very heart of the appeal, an analysis of the matters raised otherwise demonstrates that the grounds of appeal lack merit.
21The first issue raised in submissions on appeal argued that Kavanagh J was in error in finding, in the circumstances of this accident, that a failure by the appellants to give an instruction not to participate in roadside servicing and/or repair could not be causally related to the risk of Mr Phillips' health, safety or welfare. It was argued that the actions of Mr Phillips could not be described as participating in either the servicing or repair of a motor vehicle: all that he did was at the instruction of the mechanic. He started the prime mover's motor and released the brakes of the prime mover. The mechanic carried out the repairs alone and the actions of Mr Phillips were no more than what might occur when a motorist was being assisted by a roadside service provider, such as the NRMA.
22The appellants' submission, in this simple form, is not supported by the evidence. The mechanic accepted that he usually performed this type of job on his own without assistance from anybody and his employer's practice was that he should not enlist the support or help of drivers. He accepted that the drivers were to keep out of the way completely. Despite these matters the mechanic did ask the driver, Mr Phillips, to assist him. The mechanic confirmed that, if a driver had told him he was tired and did not wish to assist, the mechanic would then have performed the entirety of the work himself as he normally did.
23Kavanagh J found that the driver, Mr Phillips, volunteered to assist the mechanic. He performed the tasks that he was asked to, namely, to leave the engine on and the brakes off. Importantly, her Honour also found that Mr Phillips was involved in the "checking process" following the repairs. On appeal, senior counsel for the appellants accepted that the work to be performed by the mechanic was a "one-man job". The evidence was "abundantly clear" that the mechanic would have performed this work on his own and usually did so. The mechanic and driver drove into Hexham and if the driver had stayed in town or rested elsewhere, it was not contested that the mechanic would have returned to the truck and performed all the work on his own. It was also accepted that, if the mechanic was on his own with the truck, he "would have done everything the same" - "all the driver did was do things that the mechanic would have otherwise done himself". In light of this evidence the Court is unable to accept the submission that when Mr Phillips, the driver, assisted the mechanic by doing what he was told by way of sitting in the cabin of the truck turning on the engine, releasing the brakes and assisting in checking the work, the driver was not participating in roadside servicing and/or repairs. These were the very same acts that the mechanic would have undertaken if he was performing the work alone as was the usual course and was the course that his employer had told him to adopt.
24The particulars of the charge in this respect were that there was a failure to instruct employees, including Mr Phillips, that long haul drivers were "not to participate in the roadside servicing and/or repair of the respondent's long haul heavy combination vehicles". The appellants' submissions argue that the actual repair work was solely carried out by Mr Webb, the mechanic, but the particulars do not refer to a prohibition on performing actual repair work or servicing work but used the words "participate in". The notion encapsulated by the word "participate" is to share or take part in with others (see The Macquarie Dictionary, 3rd ed). This part of the appellants' submission cannot be accepted. It might also be noted that it is quite arguable that the Notice of Appeal filed by the appellants did not raise this point.
25Under this same heading the appellants appear then to mount what might be described as a subsidiary argument, beginning with the proposition that her Honour was in error to the extent that, while Mr Phillips was sitting in the cabin of the truck as repairs were being carried out, he was not at risk of being struck by the vehicle. The respondent accepts the correctness of that position but points out that, properly understood, her Honour drew attention to the risk of being struck while leaving the cabin of the vehicle with the engine on and the brakes off. The issue raised about sitting in the cabin of the truck, in any event, appears to have no point in the appellants' case in circumstances where the prosecutor particularised the further omission or failure, namely, the failure of the defendant to instruct its employees, including Mr Phillips, that long haul drivers are to remain clear of the vehicle and were not to approach the vehicle while roadside servicing and/or repairs were being conducted. To the extent that Mr Phillips was leaving the cabin of the vehicle while these repairs were being carried out by the mechanic, he clearly was not standing clear from the truck in any relevant sense of those words. Further, her Honour's finding that in leaving the vehicle with the brakes off, Mr Phillips thereby created potential for danger that was casually connected was irrelevant to the prosecutor's case as particularised. The strength or cogency of that case is not diminished by these comments of her Honour and they were unconnected to her ultimate findings as to the particulars of the unsafe system of work.
26The second broad heading on appeal concerned the instruction to remain clear of the vehicle and not approach the vehicle while repairs were being conducted. It was submitted that the phrase "remain clear of the vehicle" in the circumstances that arose at the time of this incident was "so vague as to be meaningless". It was suggested that there were many potential definitions of that phrase including the staying away of a short distance, below one metre, or, up to 30 metres. The error was described as a failure by her Honour to require that the instruction "be defined with much greater clarity". The instruction had to be intelligible and capable of compliance. It was further submitted that Mr Phillips, having left the cabin of the truck then walking alongside the vehicle, was not then at risk of being struck by the vehicle while it was being repaired unless he decided to stand in front of the vehicle, behind the vehicle or went under the vehicle or exposed his feet to be run over by the vehicle. It was submitted that there were no extrusions from the vehicle that may have struck him unaware if it had moved.
27The very terms of this submission demonstrate the error drawn to attention by the Full Court in Drake : the submission focuses upon the accident and not upon the alleged risk.
28It was accepted by the appellants that Mr Phillips was standing beside the truck when it began to move. Although there were not precise measurements of the prime mover and its two trailers provided in the factual report prepared by the Inspector, the photographs in evidence in the context of surrounding objects, including motor vehicles, indicate that the total length of the truck and trailers was considerable and the height of the load towered over a person standing next to it. The truck and its load was said to weigh more than 60 tonnes and when it began to move, there could be no way of knowing in what direction it would go. In submissions for the appellants, it was suggested that the truck might have proceeded straight ahead and possibly into bush or may have missed that area and travelled on to the highway. In acknowledging that the truck could vary in its direction, it could not then be excluded from contemplation that the truck may therefore strike somebody who was standing next to it or with their back to the truck and/or while being unaware of any movement. That is the type of risk that was encompassed by the direction particularised by the prosecutor. It is not inconceivable that a truck that begins to move may come into contact with some other object, causing its load to move - in those circumstances, a person standing beside a truck could be at risk. The appellants' total focus on the very events that occurred on this day, including where the truck came to rest, has the result of its submissions failing to come to grips with the risk particularised by the prosecutor.
29This instruction, like any workplace instruction, requires, at minimum, the application of commonsense. A direction by the employer to "stand clear" from an object necessarily carries with it an understanding that the person must put themselves beyond danger. In each case, this may require an assessment to be made but the direction will be no less valid or of utility because of the need of some commonsense assessment. In relation to the respondent's activities, it must also be borne in mind that when repairs were required, the appellants' system was to report immediately to the national maintenance manager and to follow instructions given by that manager to ensure that prompt repair was organised. Where that requirement to contact the national maintenance manager operates alongside a direction to stand clear of the vehicle during servicing or repairs, it is entirely open under that system for the maintenance manager to give a direction to the driver as to where he should go in order to be safe in the circumstances then extant.
30In dealing with this submission, the respondent prosecutor cited the decision of Dawson J in Kondis v State Transport Authority (formerly Victorian Railways Board) (1984) 154 CLR 672, at 695:
The breach was the failure of the foreman employed by the respondent to direct the appellant to stay clear of the jib of the crane whilst it was being extended.
The respondent relies on this observation as support for the proposition that it is not necessary to specify a particular distance in order for a "stand clear" direction to be intelligible or capable of being complied with. The Court accepts that proposition in this case. On this approach to the particularised directions, the appellants' related lack of casual connection submission also fails.
31The submissions regarding the inadequacy of the instruction to "stand clear" also merged into the third submission concerning the circumstances of Mr Phillips' fatal injury. Again, this submission focuses upon the accident rather than the risk particularised. The submission firstly proposes that there was almost nowhere for Mr Phillips to wait within the boundaries of the inspection station in order to be able to stand clear of the truck. This submission, concentrating as it does on the actual accident, ignores the fact that Mr Phillips was instructed to take a seven-hour break because he had been driving for too long a period and had been "grounded". Such a requirement had to contemplate that he would take his break at some place remote from the roadside inspection station. It is also significant that the appellants did not raise any s 28 defence and therefore did not argue that it was not reasonably practicable for the respondent to comply with the provision or that the commission of the offence was due to a cause over which the appellants had no control or against the happening of which it was impracticable for the appellants to make provision.
32In this context, it was also submitted by the appellants that the fatal injuries suffered by Mr Phillips were not as a consequence of a risk created to his health and safety by failing to instruct him to "keep clear" but were a direct result of Mr Phillips' "instinctive and selfless act" in seeking to stop the vehicle that had begun to move. The vehicle had begun to move, it was submitted,because of the totally inadequate system of work adopted by the service provider who employed Mr Webb, the mechanic, and the inadequacy of the wheel chocks he chose for this task. Again, the submission focuses totally on the accident and not the risk particularised.
33The difficulty that arises for this submission, apart from those already identified, is that it assumes that, should the appellants have given a direction to "stand clear" and to not involve himself in the servicing or repair of the truck, Mr Phillips would, nevertheless, have refused to stand clear and would have remained in close proximity to the truck and would still have reacted instinctively in trying to stop the truck and would do so in breach of specific instructions to the contrary. It is simply unknown what Mr Phillips' reaction would have been if he remained in the area in similar circumstances. It cannot be assumed that, if the instruction as particularised had been given, Mr Phillips would stay in close proximity to the truck - the situation may never have arisen for him to react instinctively, or otherwise. It is equally unknown whether, given an instruction to keep clear and to not involve himself in the repair of the vehicle, Mr Phillips would disobey that direction: it cannot be assumed that he would do so simply because he took an instinctive action in circumstances where he was devoid of any guidance or direction by his employer as to what he should do and was, thereby, situated next to the vehicle. It might also be observed that if the appellants had given the direction in terms particularised by the prosecutor and had taken steps to enforce compliance with that instruction, any disobedience of that instruction would not automatically lead to a breach of the Act and a failure to provide a safe system of work. The major object of the Act is to ensure that safe systems of work are laid down and enforced. The instructions as particularised by the prosecutor satisfy that objective.
34Having regard to the matters considered above, the appeal is dismissed and the appellants shall pay the costs of the respondent, as agreed, or, alternatively, as assessed. The Court makes orders accordingly.