Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of New South Wales

APPELLANT: Mr G J Hatcher of counsel Solicitor: Mr P Brown Baker & McKenzie LEGAL REPRESENTATIVES: RESPONDENT: Ms P E McDonald of counsel Solicitor: Mr S Pertsinidis WorkCover Authority of New South Wales

JUDGMENT:

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

CORAM: WRIGHT J, President HUNGERFORD J BOLAND J

Thursday, 7 December 2000 Matter No IRC 1710 of 2000

KENNEDY-TAYLOR (NSW) PTY LIMITED v WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR STEPHEN CHARLES)

Appeal against a decision of Justice Kavanagh given on 13 October 1999 in Matters No IRC 605, 606 and 607 of 1998.

JUDGMENT OF THE COURT [2000] NSWIRComm 240 1 This is an appeal pursuant to s 196 of the Industrial Relations Act 1996 and s 5AA(1) of the Criminal Appeal Act 1912 by Kennedy-Taylor (NSW) Pty Limited from a judgment of Kavanagh J handed down on 13 October 1999 in Matters No IRC 605, 606 and 607 of 1998. 2 The proceedings before her Honour involved three alleged breaches of s 15(1) of the Occupational Health and Safety Act 1983. The appellant had pleaded not guilty at first instance, however, Kavanagh J found the offences proven. Her Honour subsequently handed down judgment on sentence on 29 March 2000 but, save for seeking a stay of the orders, there was no appeal by the appellant against the actual fine imposed of $100,000. 3 The appellant seeks orders quashing the decision of her Honour in convicting it of the three offences which, if successful, would necessarily quash the sentence; otherwise, no challenge is made to the quantum of the sentence. 4 The proceedings before her Honour involved prosecutions brought by Stephen Charles, as an inspector of the WorkCover Authority of New South Wales, for the three breaches of s 15(1). The prosecutions arose from an incident that occurred on 5 March 1996 when a trafficable suspended ceiling, on which three persons were standing, collapsed. The three persons, who each suffered injuries to varying degrees as a result of the collapse, were electrical workers employed by the appellant. The appellant had been subcontracted by Mainbrace Constructions Pty Limited to carry out electrical work at the premises of Chisholm Manufacturing, a division of Woolworths Limited. Mainbrace was the project manager appointed by Chisholm to carry out building renovation work on sections of a meat processing facility which was owned and occupied by Chisholm at Blacktown in the State. 5 It should be noted that Mainbrace was charged with offences under s 16(1) of the Occupational Health and Safety Act relating to the same incident. Mainbrace was found guilty and also appealed (Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) [2000] NSWIRComm 239). Background facts 6 As characterised by Kavanagh J, the circumstances were not regarded as contentious by the appellant or the respondent. Relevant extracts from her Honour's judgment are as follows: Kennedy-Taylor a defendant, was sub-contracted by Mainbrace to carry out electrical work at the premises. They are electrical contractors and manufacturers. Kennedy-Taylor employed as electricians; Erwin Ruttiman, 58 years of age; Glenn Smith, 34 years of age; and David Tillet, 21 years of age. There was a variation to the contract in late January or early February that involved further electrical work associated with the erection of a new northern wall on the premises. Mainbrace raised an issue of fact about the degree of this variation and such issue will be addressed in an examination of the case prosecuted against Mainbrace. After the completion of duties on the afternoon of 5 March, 1996 Erwin Ruttiman, Glenn Smith and David Tillet were checking a site for work the next day and were standing on a trafficable suspended ceiling over the area of the premises known as the "Hanging Area", when that part of the ceiling on which they were standing collapsed. All three men fell a distance of approximately 6 metres to the ground in the Hanging Area. Employees of Chisholm Manufacturing, who had been working in the Hanging Area where the ceiling collapsed, had finished work about 3.00pm that day. There were no persons working underneath the trafficable ceiling in the Hanging Area when the ceiling collapsed. The injuries sustained by the three men were: (a) Erwin Ruttiman suffered a fracture to his right femur, a deep laceration to his face and soreness to head and right hand. A stainless steel rod was surgically inserted inside the bone of his right leg and is supported by four screws. It is not expected that Ruttiman will return to work. (b) Glenn Smith suffered bruising to his back and knee, and stiffness to his neck. He returned to work shortly after the accident. (c) David Tillet suffered bruising under his right arm, superficial scratches and soreness to his lower back. He returned to work shortly after the accident. Inspection of the premises was conducted by Inspector Charles on 6 March, 7 March, 11 April and 28 May 1996. A factual inspection was completed and photographs taken. Inspector Charles gave evidence that on the premises a large meat processing factory operated. The Hanging Area measured approximately 10 metres x 6 metres. The room was made of sandwich cool room panels with foam inserts, which lined the walls and ceiling. The ceiling was approximately 6 metres above ground level. Inspector Charles on his first visit saw the ceiling at the northern end of the Hanging Area had collapsed. Five sandwich ceiling panels were on the ground. He observed electrical wiring at ceiling height. Three further ceiling sandwich panels which had collapsed were resting on a metal structure which was connected to horizontal `I' beams, within the Hanging Area. The demolition and construction included improvements to a room known as "Cellar Processing", which adjoins the Hanging Area, separated by a wall at the northern end of the Hanging Area. Owing to the headroom required to install a new loading machine in the Cellar Processing Room and the construction of new Cool Rooms, the old wall between the Hanging Area and Cellar Processing Room was removed in early February, 1996. For hygienic reasons, before the old wall was removed, a Dust Suppression Wall (the dust wall) was erected about 1.2 metres away from the northern wall, within the Hanging Area. Mainbrace, in accordance with a variation to the original contract, sub-contracted another company, Thermal Insulations Pty Ltd, to construct the new northern wall between the Hanging Area and Cellar Processing Room, comprising new 150 mm thick sandwich wall panels. The dust wall was made of sandwich ceiling panels. It was designed and erected and removed by Mainbrace. It was never intended that the dust wall be a load bearing wall. It was erected to prevent dust and other material entering the Hanging Area where the meat processing continued to be conducted throughout the demolition and construction process. The dust wall was connected to the existing trafficable ceiling and floor of the Hanging Area by aluminium angle irons (50 mm x 50 mm) between the ceiling and dust wall. In addition, silicone sealant was applied between the gap which was approximately 12-15 mm between the top of the dust wall and the existing ceiling panels. Approximately 1 hour before the accident, Mainbrace, through Mr Doring, the site manager for Mainbrace, directed its employees to remove the dust suppression wall in the Hanging Area. In accordance with common practice in the industry acrow props were used to support the suspended ceiling as the dust wall was removed. Mainbrace did not inform other companies' workers on site especially workers from either Thermal Insulations or Kennedy-Taylor prior to the collapse that they were taking the dust wall down. After the dust wall and the props had been removed, Mr Richard Deignan (a production foreman employed by Chisholm Manufacturing) saw that the suspended ceiling in the Hanging Area was sagging. Mr Deignan immediately informed Mr Peter Doring, the site foreman for Mainbrace. The accident occurred approximately 10 minutes after Mr Doring was informed. Mr Doring on being notified of the sagging in the ceiling looked at it, conversed with Mr Deignan then went to speak with Mr Alan Bower, an employee of Thermal Insulations, about the problem. While with this employee from Thermal, he was told the ceiling had collapsed and fallen….. Although, the Hanging Area was not an area where original construction was taking place, it was necessary for many tradespersons involved in the conduct of normal business and in the construction to use the ceiling above this area as a means of access and egress to their work areas. It was being used on 5 March 1996 as an access area to an electrical site by the injured electrical workers at the time of the accident in accordance with a task allegedly arising out of a variation to the contract. Immediately prior to the accident, Mr Ruttiman, Mr Smith and Mr Tillet entered the suspended ceiling area to inspect electrical wiring on the northern wall. They climbed the access stairs to the ceiling. In the area of the stairs was a warning sign which said: WARNING - ACCESS AREAS INDICATED BY MARKINGS MAX. LOAD NOT TO EXCEED 110kg at 1.2m SPACING OTHER AREAS NOT TO EXCEED 1 MAN + 20kg/PANEL At some stage, when is not clear from the evidence, but prior to accessing the ceiling, Glenn Smith (foreman for Kennedy-Taylor was advised by Mr Doring, (foreman for Mainbrace) to ask a tradesman employed by Chisholm Manufacturing on the site how to access the ceiling for the removal of electrical fixtures on the northern wall. He was advised by the Chisholm worker to stay close to the edges of the roof near a wall support or close to the suspension chains where there was more support when he travelled along the ceiling. Mr Smith had been into the ceiling prior to the day of the accident to disconnect the thermostats. When the three men entered the roof area, they spaced themselves at approximately 2 metre distances from each other and were standing on separate ceiling panels at the time of the collapse. All three men were standing on the ceiling within 1 to 3 metres of the newly erected northern wall of the Hanging Area. They had only been standing on the ceiling for some minutes when it collapsed. The panel Mr Smith was standing on was the first to collapse followed quickly by the panels that Mr Tillet and Mr Ruttiman were standing on. None of the three men were carrying any equipment at the time of the accident. Their weight at the time was estimated at: Mr Smith 83-84 kgs, Mr Tillet 70kgs approx and Mr Ruttiman 83-84kgs. Summonses 7 There were three summonses issued against the appellant in which it was alleged in each of them that the appellant on 5 March 1996 at 25 Bessemer Street, Blacktown in the State of New South Wales, being an employer, did fail to ensure the health, safety and welfare at work of all its employees and, in particular, Erwin Ruttiman, Glenn Smith and David Tillet. The particulars of each of the summonses were as follows: · Summons No. 605 of 1998 pleaded that the defendant failed: To provide or maintain means of access to and egress from designated construction areas via means of the trafficable suspended ceiling over the Hanging Area, that was safe and without risk to health. · Summons No. 606 of 1998 pleaded that the defendant failed: To conduct a risk assessment of the structural integrity of the trafficable suspended ceiling above the Hanging Area used by its employees as an access way. · Summons No. 607 of 1998 pleaded that the defendant failed: To adequately instruct its employees that they must not utilise the suspended ceiling as an access way until its structural integrity was assessed and confirmed. 8 Kavanagh J found each of the offences proven. Approach on appeal 9 This being an appeal under the combined operation of s 196 of the Industrial Relations Act and s 5AA(1) of the Criminal Appeal Act, leave is not required and the appeal is to be by way of re-hearing on the evidence and not by way of a hearing de novo: Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo - Ramsay) [2000] NSWIRComm 71, (2000) 99 IR 29; Warman International Ltd v WorkCover Authority of New South Wales (Inspector AnKucic) (1998) 80 IR 326 at 331, 339. In Capral Aluminium the Court (Wright J, President, Walton J, Vice President, Kavanagh J) stated: The present appeal is an appeal as of right: see s 5AA(1) of the Criminal Appeal Act and s 196 of the Industrial Relations Act . The approach to be adopted in an appeal under those provisions is now settled. Section 5AA(3) of the Criminal Appeal Act provides that an appeal brought under that section shall be "by way of rehearing on the evidence … given in the proceedings before the Supreme Court in its summary jurisdiction." This provision has been considered in a number of judgments of the Court of Criminal Appeal and its application in this jurisdiction has been considered in a number of judgments of Full Benches of this Court. The Full Court hearing the appeal is not determining whether the trial judge fell into error, but is independently determining the appropriate conviction and sentence. In NSW Sugar Milling Co-Operative Ltd v Environmental Protection Authority (1992) 59 A Crim R 6 at 11, Enderby J (with whom Hunt CJ at CL and Allen J agreed) stated: "… it has to be borne in mind that it is not a question for this Court of whether or not his Honour erred in making the findings he made, but whether this Court is independently of the same opinion as his Honour. " An appeal brought under s 5AA is not a hearing de novo and new evidence may be adduced only with leave of the Court: s 5AA(3A). Nonetheless, the appeal Court must consider afresh the ultimate issue to be determined. 10 We respectfully adopt and follow this approach in these proceedings. Legislation 11 It is pertinent to first set out the provisions of s 15(1) and s 15(2) of the Occupational Health and Safety Act. Section 15(1) provides: (1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees. 12 Section15(2) provides: (2) Without prejudice to the generality of subsection (1), an employer contravenes that subsection if the employer fails: (a) to provide or maintain plant and systems of work that are safe and without risks to health, (b) to make arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage or transport of plant and substances, (c) to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of the employer's employees, (d) as regards any place of work under the employer's control: (i) to maintain it in a condition that is safe and without risks to health, or (ii) to provide or maintain means of access to and egress from it that are safe and without any such risks, (e) to provide or maintain a working environment for the employer's employees that is safe and without risks to health and adequate as regards facilities for their welfare at work, or (f) to take such steps as are necessary to make available in connection with the use of any plant or substance at the place of work adequate information: (i) about the use for which the plant is designed and about any conditions necessary to ensure that, when put to that use, the plant will be safe and without risks to health, or (ii) about any research, or the results of any relevant tests which have been carried out, on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risks to health when properly used. Grounds of appeal 13 The grounds of appeal may be placed into four categories:

1. That s 15(1) did not create obligations in relation to work premises, or means of access and egress to work places, that are beyond the control of the employer;
2. That Kavanagh J erred in law in her interpretation of the relationship of the general duty created in s 15(1) and the particular duties specified in s 15(2);
3. That her Honour's findings of liability were contrary to the evidence and the weight of the evidence and did not properly apply the reasonable doubt standard for all the elements of the offences;
4. That her Honour failed to give sufficient regard to the defence under s 53 of the statute. Submissions by appellant and respondent 14 The first category in the grounds of appeal, which went to the issue of "control", is linked to the second category which involved the question of the relationship between sub-ss (1) and (2) of s 15. In its submissions on appeal, the appellant seems to have merged the two categories so that the submissions were put under three broad headings, namely: (i) the relationship between the sub-sections; (ii) the process of fact finding for the purposes of establishing a breach; and (iii) the nature of the s 53 statutory defence. 15 The submissions of the parties under each of these headings are summarised below. Relationship between sub-ss (1) and (2) of s 15 16 Mr G J Hatcher of counsel appeared for the appellant. It was his contention that where particularity is given to the general duty created in s 15(1) by the provisions of s 15(2) then it is necessary for the prosecutor to both charge and to prove a breach of the relevant provisions identified in s 15(2). 17 Drawing attention to the particulars of the summonses, specifically summons No 605 of 1998 which refers to the alleged failure "To provide or maintain means of access to and egress from designated construction areas via means of the trafficable suspended ceiling over the Hanging Area, that was safe and without risk to health", Mr Hatcher contended that, in the absence of it being alleged against the appellant that the trafficable ceiling was a place of work under its control, the legislature did not intend to create a separate offence of "failing to provide or maintain means of access to and egress from (an area or place) that was safe and without risks to health." In other words, what was put was that notwithstanding the generality of the terms of s 15(1), it had to be read down by the terms of s 15(2) so that in order for the prosecution to prove an offence under s 15(1) involving "access to and egress from" it would have to show a breach of s 15(2)(d)(ii) which requires that there be "a place of work under the employer's control." 18 The appellant submitted, as we understand it, that the respondent not only wrongly framed the charge but also failed to prove any of the offences charged because, as they involved the issue of "access to and egress from" (summons No 605 of 1998) or "access" (summonses Nos 606 and 607 of 1998), it was not shown that the trafficable ceiling was a place of work under the appellant's control. 19 In support of its contention the appellant argued further that: · where a specific duty is created by s 15(2), the words of limitation in that specific duty must be given effect and cannot be circumvented by recourse to a charge under s 15(1); · the statute must be interpreted strictly and in context and in its overall terms; and · it would be an odd result if the legislature intended to create a duty upon employers to ensure the safety of workplaces over which they had no control. As the case in point demonstrates, in order to ensure the structural safety of the trafficable ceiling it would be necessary to conduct destructive testing of the ceiling. How that might be done by a person who has no control over the premises is difficult to ascertain. 20 Ms P E McDonald of counsel appeared for the respondent. Ms McDonald submitted that in putting its argument regarding the relationship between s 15(1) and s 15(2), the appellant relied on the maxim of statutory interpretation generalia specialibus non derogant - where there is a conflict between general and specific provisions the specific provisions prevail. The respondent submitted that the maxim did not apply in this case for the following reasons: (1) The maxim only applies where there are two inconsistent provisions which cannot be reconciled as a matter of ordinary interpretation: Purcell v Electricity Commission of New South Wales (1985) 60 ALR 652 at 657; Reseck v Federal Commissioner of Taxation (1975) 133 CLR 45 at 53. (2) The opening words of s 15(2) state that s 15(2) is without prejudice to the generality of s 15(1). (3) The appellant's interpretation is contrary to authority: Boral Gas (NSW) Pty Ltd v Magill (1995) 58 IR 363. (4) The appellant's argument can only possibly be made in relation to summons No 605 of 1998. The process of fact finding for the purposes of establishing a breach 21 The appellant's submissions under this head may be summarised as follows: · In order to be satisfied that the failure to conduct a risk assessment into the structural integrity of the ceiling led to the requisite risk to safety, the Court would need to be satisfied that a risk assessment would have revealed a deficiency in the structural integrity of the ceiling. As her Honour never determined what in fact occurred to result in the ceiling falling, it is difficult to see how her Honour could have been satisfied beyond reasonable doubt that the risk assessment would have led an employer to prevent his employees entering the area. · Evidence by the prosecution's expert that water in the ceiling panels was not a significant factor causing the collapse of the ceiling, and further expert evidence from the prosecution that the design of the suspension system holding up the ceiling was adequate, puts into question how her Honour could have been satisfied beyond reasonable doubt that a risk assessment into the structural integrity of the ceiling would have overcome any risk to safety. · There was further expert evidence led by the prosecution that the angle iron which had recently been put in place by Thermal Insulations Pty Limited (the subcontractor who erected the new northern wall) failed, leading to large and unintended forces being placed on the turnbuckles supporting the ceiling thus causing the ceiling to collapse. This puts into question how her Honour could have been satisfied that a risk assessment into the structural integrity of the ceiling would have identified any risk to safety. · Her Honour appears to have reasoned from the fact that the ceiling collapsed that there was a structural fault which would have been apparent upon conducting a risk assessment. This reasoning does not appear to be assisted by the evidence. · It was necessary for the prosecutor to establish beyond reasonable doubt that the risk was present and capable of being known: Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149. Her Honour, however, approached the issue from the perspective that there was no evidence to suggest the appellant would not have had the ability to compel corrective action to secure the safety of workers had it inspected the site and requested tests to assess and protect the ceiling's integrity. The effect of this was to found an obligation on the appellant to call evidence that the owner of the property would not permit such testing to be carried out. 22 Ms McDonald submitted that the appellant's submissions were fundamentally flawed in that they focused upon the accident rather than on the relevant detriment to safety: Haynes; Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 449. Once her Honour found that the condition of the ceiling presented a risk to the safety of the workers, it was not necessary for her Honour "to determine what in fact occurred to result in the ceiling falling". Nature of the s 53 statutory defence 23 Mr Hatcher submitted that the appellant had ascertained what restrictions were placed upon access through the trafficable ceiling and adopted those restrictions. Given that this was the approach adopted by the prosecutor after the ceiling had collapsed he submitted that it is difficult to see how it could not be held to be reasonably open, on the balance of probabilities, to find that the appellant had taken all steps which were reasonably practicable. 24 Ms McDonald submitted that the appellant had not discharged the onus upon it under s 53 that it was not reasonably practicable for it to comply with its obligations under the Occupational Health and Safety Act. Consideration 25 It is convenient, we think, to consider what has been put in this appeal by addressing the issues under the three main heads used in the appellant's submissions. We deal firstly with the relationship between sub-ss (1) and (2) of s 15. Relationship between sub-ss (1) and (2) of s 15 26 The question that arises here for determination is: where particularity is given to the general duty created by s 15(1) by the provisions of s 15(2), is it necessary for the prosecution to both charge and prove a breach of the particular provisions identified in s 15(2)? In these proceedings, the appellant conceded that there may be duties other than those identified in s 15(2) in respect of which an employer might be charged under s 15(1). However, where a specific duty is created by s 15(2), the appellant submitted that the words of limitation in that specific duty must be given effect and cannot be circumvented by recourse to a differently framed charge under s 15(1). 27 In other words, where the charge involves an alleged "failure to provide and maintain a safe means of access to and egress from", as was the case in these proceedings, the charge had to be expressed in the terms of the duty set out in s 15(2)(d)(ii) and proven beyond reasonable doubt. This meant that in these proceedings the respondent had to express the alleged failure to include the element "as regards any place of work under the employer's (appellant's) control" and had to prove that element beyond reasonable doubt. The appellant submitted that because each of the charges involved the issue of "access", the respondent had not proven any of the offences charged. 28 In State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 at 113 the former Industrial Commission in Court Session observed: Without prejudice to the generality of the duty cast on an employer by subs (1), subs (2) of s 15 then sets out the indicia of how an employer contravenes subs (1). It is clear, however, from Shannon v Comalco Aluminium Limited (1986) 19 IR 358 at 359, that s 15(1) establishes a far reaching obligation upon an employer and imposes a duty in absolute (or strict) terms with s 15(2) spelling out the heads or particulars of that absolute duty but without in any way cutting down its rigour. 29 In Boral Gas (NSW) Pty Ltd v Magill (1995) 58 IR 363, Fisher CJ concluded at 364 "that s 15(1) states the offence. Section 15(2) provides further but not necessarily exhaustive particularisation". 30 In WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (unreported, Walton J, Vice President, IRC 4732, 4733 of 1997, 19 October 1999) his Honour, in relying on the authority in Dawson, said: Without prejudice to the generality of the duty cast on an employer by sub-section (1), sub-section (2) of s 15 then sets out the indicia of how an employer contravenes sub-section (1) by elaborating the general duties imposed by sub-section (1). Section 15(1) establishes a far reaching obligation on an employer and imposes a duty in strict terms with s 15(2) spelling out the heads or particulars of that absolute duty but without in any way cutting down its rigour. 31 The breadth of the duty imposed by s 15(1) was emphasised in Drake at 449: This Court and its predecessors have frequently emphasised the breadth of the duty imposed by s 15(1) of the OH&S Act: see, for example, WorkCover Authority of NSW (Insp. Piggott) v Capral Aluminium Ltd (1998) 82 IR 468 at 478 and WorkCover Authority of NSW (Insp. Egan) v ATCO Controls Pty Limited (1998) 82 IR 80 at 85. The duty imposed by s 15(1) on employers to ensure the health, safety and welfare at work of all their employees is an absolute duty. In Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 469-470, Watson J said: "I am satisfied that the legislative intention contained in the new Occupational Health and Safety Act 1983, is quite clear. Had the legislature intended to restate the common law obligations devolving on an employer to take reasonable care for the safety of his employees, it would have been open for it to have adopted wording such as that which appears in regulations under the South Australian Industrial Safety, Health and Welfare Act 1972, where in reg 4 the phraseology used is "shall take all reasonable precautions to ensure" (see Smith v Elliott Bros. (1980) 26 SASR 138).... In their context and purpose, there would appear to be no reason to make any implication that the words 'to ensure' are to be construed in any way other than their ordinary meaning of guaranteeing, securing or making certain." See also Italo Constructions Pty Ltd v Parkes (1988) 24 IR 428. The duty created by s 15(1) is not necessarily satisfied by the carrying out of what ought be done by a reasonable or prudent person in the circumstances. 32 The words of s 15(1) and s 15(2) and the authorities cited would seem to establish the following about the two sub-sections and their relationship with each other: (i) section 15(1) establishes a far reaching duty on an employer which is in strict terms; (ii) section 15(2) sets out the indicia (or particulars) of how an employer contravenes s 15(1) but these do not cut down the rigour of s 15(1); (iii) section 15(2) is without prejudice to the generality of s 15(1) and consequently the indicia (or particulars) in s 15(2) are not exhaustive; and (iv) any offence under s 15 is created by subsection (1) and not s 15(2) and, therefore, any charge would have to be under s 15(1). 33 It is also clear that, in interpreting the obligations under s 15, the Court must take into account the purposes of the statute. 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 general purpose of the statute and concluded, albeit 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 s16(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." 34 Section 15(2)(d)(ii) imposes a quite specific duty on employers as regards any place of work under the employer's control and that is to provide or maintain means of access to and egress from the place of work that are safe and without any risks to health. The question arises as to an employer's duty as regards a place of work not under the employer's control. Does that employer have a duty under the general obligations imposed by s 15(1) to provide or maintain means of access to and egress from the place of work? 35 The appellant submitted, in effect, that if an employer did not "control" the place of work it had no duty to provide or maintain means of safe access to and egress from the place of work. This would mean, in the circumstances of this case, that the appellant had no obligation to ensure that the walkway, that is the trafficable ceiling, which its employees used to gain access to a place of work was safe and without risks to health. If this be right it would have the effect of cutting down the "far reaching obligation upon the employer" under s 15(1). Given that s 15(2) is said to be without prejudice to the generality of s 15(1), and the weight of authority is that a statute of the nature of the present Act should be interpreted "in the sense favourable to making the remedy effective and the protection secure", there would have to be sound and convincing reasons for us to find in the appellant's favour on this submission. 36 The appellant's first reason was that all of the words of the statute are to be given effect, including the words of limitation in s 15(2). The appellant described the words of limitation as "any place of work under the employer's control" in s 15(2)(d). Mr Hatcher argued that if s 15(1) was to be interpreted so widely as to include the duty in s 15(2)(d)(ii) then the words of s 15(2)(d)(ii) would be redundant or "mere surplusage". 37 On the other hand, of course, if s 15(2) is to be regarded as exhaustive it makes the opening words of the subsection otiose. The appellant, in its submissions, seemed to have accepted that s 15(2) is not exhaustive but, nevertheless, argued that there could only be one offence involving a failure "to provide or maintain safe access to and egress from" and that was in accordance with s 15(2)(d)(ii). We do not think that position is tenable. 38 It is convenient at this point to refer to the decision of the High Court in Leon Fink Holdings Pty Limited v Australian Film Commission (1979) 141 CLR 672. This case involved the question whether the Australian Film Commission had power under the Australian Film Development Act 1970 to lend money to a person who was not a producer of Australian films. The leading judgment, with which Barwick CJ and Aickin J agreed, was given by Mason J who at 677-679 said: The functions and powers of the Corporation are set out in ss. 20 and 21 of the Corporation Act. These sections, so far as material, are in these terms: "20. (1) The functions of the Corporation are to encourage the making of Australian films and to encourage the distribution of Australian films both within and outside Australia. . . . 21. (1) The Corporation has power to do all things necessary or convenient to be done for or in connexion with the performance of its functions and, without limiting the generality of the foregoing, has power - (a) to make loans on such terms and conditions, including conditions as to repayment of principal and payment of interest, as the Corporation thinks fit, to producers of Australian films; . . . (c) to provide financial assistance to producers of Australian films under arrangements that entitle the Corporation to receive a share of the proceeds derived from the sale, hire or exhibition of the films or the inclusion of the films in television programmes but do not render the Corporation liable for any debts incurred by those producers;" . But for the presence of par. (a) in s 21 (1), I should have had little difficulty in concluding that the Corporation had power to lend money to a person who was not the producer of Australian films so long as the purpose of the lending was to encourage the making or the distribution of Australian films. The lending of money for the purpose of assisting the production of an Australian film is a means of encouraging the making of that film, just as it was held in Kathleen Investments (Australia) Ltd. v. Australian Atomic Energy Commission (1977) 139 CLR 117 that the subscription for shares for cash in the capital of a company engaged in exploration for and mining of uranium was a means of encouraging exploration for and mining of uranium. The lending of money for the purpose of encouraging the making or distribution of Australian films would then constitute the doing of something convenient, if not necessary, to be done for the performance by the Corporation of its functions. However, it is necessary to take account of the presence of par. (a) of s. 21 (1). It is accepted that when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power. We have here, not two distinct powers, the one general and the other special, but one power in general terms followed by specific powers which may be no more than particular expressions or exemplifications of what may be done in the exercise of the general power. This circumstance in itself would not make inapplicable the principle of construction which was adopted in the two cases to which I have referred. However, the presence of the words "without limiting the generality of the foregoing" is an important distinguishing feature of s 21. The critical question is whether there is any implied restriction upon the general power to be derived from the presence of par. (a), when there is a clause which is designed to preserve the generality of the unqualified power according to its terms. The specific power to lend which is given by par. (a) is confined to loans to producers of Australian films, just as par. (c) confines the specific power to provide financial assistance to producers of such films. Is this enough to justify the implication that the Corporation was otherwise without any power to lend money in the performance of the functions entrusted to it by the statute? To arrive at this conclusion would be to deprive the Corporation of power to lend moneys surplus to its immediate requirements by depositing them at call with a bank or other financial institution, a result that could scarcely have been intended by the Parliament. The Courts will as a general rule strive "to adopt that (construction) which would give some effect to the words rather than that which would give none " (Cargo ex "Argos "; Gaudet v. Brown (1873) LR 5 PC 134, at p 153 ) and will endeavour to avoid an interpretation of a statute which renders its words redundant or tautologous ( East London Railway Co. v. Whitechurch (1874) LR 7 HL 81, at pp 89, 93). However, it is recognized that Parliament is sometimes guilty of surplusage or even tautology ( Commissioners for Special Purposes of Income Tax v. Pemsel ( 1891) AC 531, at p 589 ). As Jessel M.R. said in Yorkshire Fire and Life Insurance Co. v. Clayton (1881) 8 QBD 421, at p 424 , ". . . it may not always be possible to give a meaning to every word used in an Act of Parliament". From time to time provisions will be inserted for more abundant caution to guard against the possibility that the general might be read as not including the particular. There are strong grounds for thinking that the specific power given by par. (a) of s. 21 was conferred in order to dispel any doubt that might be entertained as to the extent of the general power and to ensure the existence of a power to lend to producers of Australian films. In this case the words "without limiting the generality of the foregoing" evince an intention that the general power should be given a construction that accords with the width of the language in which it is expressed and that this construction is not to be restricted by reference to the more specific character of that which follows. The clause therefore operates to negative the restrictive implication which might otherwise have been derived from the presence of the specific power to lend contained in par. (a). I do not wish to be taken as suggesting that a clause of this kind will always be effective to prevent the making of a restrictive implication derived from the presence of a specific power which is expressed to be subject to limitations, qualifications, restrictions or conditions. In every case it will depend on the precise character of the relevant provisions and on the context in which they are found. 39 Similarly, in these proceedings we consider that the words "Without prejudice to the generality of subsection (1)" in s 15(2) evince an intention that the general power (in subs (1)) should be given a construction that accords with the width of the language in which it is expressed and that this construction is not to be restricted by reference to the more specific character of that which follows. This, in our view, puts s 15(2)(d)(ii) in the category of an exemplar of the general duty under s 15(1) rather than a specific power. Seen in that light, the words in s 15(2)(d)(ii) have been inserted for more abundant caution to guard against the possibility that the general might be read as not including the particular. 40 The second reason proffered by the appellant in support of its interpretation was that the statute imposes penalties and should be interpreted strictly. Further, that the statute should be interpreted by an ordinary reading of it and according to its context and overall terms. 41 In Capral Aluminium, the Court (Wright J President, Walton J, Vice President, and Kavanagh J) had the task of interpreting s 51A of the Occupational Health and Safety Act. In doing so, it considered a line of cases in relation to the construction of penal statutes. At par 41 the Court said: We consider that the appellants reliance upon the line of cases in relation to the construction of penal statutes exemplified by the judgements in Beckwith v The Queen and Waugh v Kippen is misplaced. For example, in Waugh v Kippen it was stated at 164: "The modern approach in construing penal statutes was stated by Gibbs J (as he then was) in Beckwith v The Queen (1976) 135 CLR 569 at 576 as follows: 'The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R v Adams (1935) 53 CLR 563 at pp567-568; Craies on Statute Law , 7th ed. (1971), pp529-534. The rule is perhaps one of last resort.' " The reference to the rule being one perhaps of last resort requires, because of certain submissions in this matter, some explanation. It means, generally speaking, that the rule only applies to require that an ambiguity as to the meaning of the provision be resolved in favour of an accused if the ambiguity is one which persists after the ordinary rules of construction have "run out". See, for example, Barker v The Queen at 355 and Chew v The Queen at 632. In the latter case, the Court spoke of a situation where "all other indicia [have] failed". 42 It follows, then, that in construing the present Act the first task is to apply the ordinary rules of construction. 43 In this regard, in Capral Aluminium the Court stated: 42 The construction of s 51A is thus to be approached in terms of the usual approaches to construction, although the court should have at the forefront of its consideration the nature of the legislation which is being considered, and the potentially serious consequences of the construction reached. A useful starting point in terms of recent authorities is the judgment of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 - 382, where McHugh , Gummow , Kirby and Hayne JJ said: "69. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute (See Taylor v Public Service Board (NSW) (1976) 137 CLR 208 at 213, per Barwick CJ). The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole" ( Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320, per Mason and Wilson JJ. See also South West Water Authority v Rumble's [1985] AC 609 at 617, per Lord Scarman , "in the context of the legislation read as a whole"). In Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397), Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed ( Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 at 597; Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, per Gibbs CJ; at 315, per Mason J; at 321 per Deane J). 70. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals ( Ross v The Queen (1979) 141 CLR 432 at 440, per Gibbs J). Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions (See Australian Alliance Assurance Co Ltd v Attorney-General (Q) [1916] St R Qd 135 at 161 per Cooper CJ; Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 at 574, per Gummow J; 116 ALR 54 at 63). Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other" ( Institute of Patent Agents v Lockwood [1894] AC 347 at 360 per Lord Herschell LC). Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. 71. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision ( The Commonwealth v Baume (1905) 2 CLR 405 at 414, per Griffith CJ; at 419, per O'Connor J; Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs (1992) 176 CLR 1 at 12 - 13, per Mason CJ). In The Commonwealth v Baume (1905) 2 CLR 405 at 414 Griffith CJ cited R v Berchet (1688) 1 Show KB 106 [89 ER 480] to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent". 43 See also the discussion in the recent Full Bench judgment in Drake Personnel Limited t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 445 - 446, where it was said: "… the primary task of the court is to ascertain the intention of parliament by examining the language of the legislation itself. If the terms of the legislation are clear, so is the duty of the court. If, however, the legislation is ambiguous or uncertain the court must decide between contending interpretations. In doing so, the court should prefer the construction which best accords with the evident purpose of parliament in enacting the legislation. Relevant considerations include the need to avoid a construction the consequences of which are manifestly inconvenient, absurd, irrational or capricious or which would result in serious injustice: see, for example, Clarke v Bailey (1993) 30 NSWLR 556 at 566. For example, in their judgment, in Cooper Brookes (Wollongong) Pty. Limited v. Commissioner of Taxation (Cth) (1981) 147 CLR 297, Mason J (as he then was) and Wilson J observed (at 321): 'Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.' " "Gibbs CJ, in the same case (at 304-305), observed that the object in interpreting a statute was "to see what is the intention expressed by the words used", and held: 'However, if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. To say this is not to insist on too literal an interpretation, or to deny that the court should seek the real intention of the legislature. The danger that lies in departing from the ordinary meaning of unambiguous provisions is that "it may degrade into mere judicial criticism of the propriety of the acts of the Legislature", as Lord Moulton said in Vacher & Sons Ltd. v London Society of Compositors ([1913] A.C. 107, at p.130); it may lead judges to put their own ideas of justice or social policy in place of the words of the statute. On the other hand, if two constructions are open, the court will obviously prefer that which will avoid what it considers to be inconvenience or injustice. Since language, read in its context, very often proves to be ambiguous, this last mentioned rule is one that not infrequently falls to be applied.' " 44 The purpose of the Occupational Health and Safety Act is "to secure the health, safety and welfare of persons at work". If the interpretation proposed by the appellant were to be accepted, the effect would be to eliminate any offence under s 15(1) involving "failure to provide or maintain safe means of access to and egress from" unless it could be proven that the failure was "as regards any place of work under the employer's control". Given the breadth of s 15(1) and the opening words of s 15(2) that the subsection is without prejudice to the generality of sub-s (1), we think that the appellant's interpretation undermines the purpose of the statute. 45 We consider our approach to the interpretation is that which harmonises with the evident purpose of the legislation. We take the view that s 15(1) creates the offence and imposes a far reaching, strict liability on employers to ensure the health, safety and welfare at work of all of the employer's employees. We consider that the specific duties described in the six paragraphs of s 15(2) are exemplar of the general duty imposed on employers under s 15(1). The duties specified in s 15(2) are very extensive but we do not consider them to be exhaustive. 46 Having applied the ordinary rules of construction we do not find any outstanding ambiguity or doubt as to the meaning of s 15(1) or s 15(2). Accordingly, the rule of last resort of strictly construing a penal statute does not arise. 47 The third reason advanced by the appellant in support of its interpretation of the statute was that it would be an odd result if the legislature intended to create a duty upon employers to ensure the safety of workplaces over which they had no control. Mr Hatcher used the word "control" in the sense of "directing action" or "command" - the ability of a person to compel corrective action to secure safety: McMillan, Britton and Kell Pty Ltd v WorkCover Authority of New South Wales (Inspector Blake) (1999) 89 IR 464. Mr Hatcher submitted the point of his argument was that in order to ensure the structural safety of the ceiling it would have been necessary to conduct destructive testing of the ceiling by drilling into it to ascertain how much water had been absorbed and, therefore, how much heavier it had become so that safety may have been put at risk. The appellant questioned how this might be done by a person who did not have control of the place of work. 48 The allegations against the appellant were not that it failed to ensure the safety of a workplace but rather that the appellant failed to ensure the health, safety and welfare at work of its employees by failing to, in effect, ensure the safety of a trafficable ceiling used as a walkway by its employees over which, it was apparent, the appellant had no "control" in the sense that term was interpreted in McMillan, Britton and Kell. 49 The appellant's submission presupposes, of course, that it was necessary for it to have control over the trafficable ceiling in order to ensure the safety of its employees. We think that even though the appellant did not have control over the trafficable ceiling, in the sense that it could not compel the occupier of the premises to remedy any defect, if the risk to health and safety was present and capable of being known by the appellant it had a duty to instruct its employees not to use the trafficable ceiling until the risk had been adequately assessed and the structural integrity of the ceiling confirmed. 50 It matters not, in our view, whether the risk to safety arose out of a means of access at a place of work over which the employer had no control or arose out of a machine at a place of work over which the employer had no control. In this regard we refer to the majority decision in Drake where it was said at 455-456: In any event, we are not persuaded that the appellant would be relieved from liability under the OH&S Act, even if the existence of an implied term in the form alleged had been established. This question raises the particular circumstances of an employer who conducts a labour hire business by engaging employees for the purpose of supplying those employees to do work for other employers. The relationship created between a labour hire company and its employees is distinguishable on a number of grounds from that existing between traditional employers and their employees. A labour hire agency does not employ people to work for itself but to work for a client, it does not directly on a day to day basis supervise the tasks carried out by the employee and it is usually not in control of the workplace where the work is done. However, these circumstances do not obviate, or diminish, the obligation of the employer under s 15(1) of the OH&S Act to "ensure the health, safety and welfare at work of all the employer's employees." Indeed, in our view, an employer who sends its employees into another workplace over which they exercise limited control is, for that reason, under a particular positive obligation to ensure that those premises, or the work done, do not present a threat to the health, safety or welfare of those employees. Certainly, there is no basis to consider that such an employer has a lesser liability or obligation under s 15(1). The obligations of a labour hire company under the OH&S Act have been considered on a number of previous occasions by this Commission and its predecessors. The judgment of Hungerford J in Petar Ankucic v Drake Personnel Ltd t/as Drake Industrial (No 1) (1997) 89 IR 374 concerned a prior prosecution of the appellant. That prosecution arose from an incident in which an employee of the appellant, Mr Douglas, sustained an injury whilst operating a woodworking machine at the premises of another company, Warman International Ltd. The appellant pleaded guilty in that case and was fined a total of $25,000. Considering the question of penalty, his Honour commented (at 382): "The failure here to ensure the safety of Mr Douglas arose in a situation where he was directed by his employer, the defendant, to perform work for a third party, Warman, at that third party's premises. In such a situation, my view is that an employer has a special responsibility to ensure the health, safety and welfare of its employees at the other workplace for no reason other than that that workplace is removed from the employer's direct management and control and would usually be at a location foreign, or at least unfamiliar, to the employees concerned. The evidence established that the defendant did not satisfactorily attend to this aspect and it was not until Mr Davey was engaged that specially designed safety policies and procedures were implemented. But that was in July 1997, at least two years after the present offences were committed; Mr Douglas thereby suffered injury resulting in absence from employment for a period of at least two months and with a permanent deficit in the use of his right hand. It is no answer, in my view, in reduction of penalty otherwise considered appropriate for the defendant to plead reliance on Warman as the client to take appropriate steps to ensure safety in the workplace for all persons engaged at its premises. True it may be that Warman itself may have offended against the Occupational Health and Safety Act , but that does not, it seems to me, lessen the seriousness of the offences committed here by the defendant as the employer. It is that feature of this case which gives to the assessment of penalty such a degree of importance as will encourage employers in a business similar to that of the defendant to implement appropriate steps to ensure the safety of their employees whose labour is hired to third parties and at the same time to deter employers for failing to take such steps." See also Rodney Paul Dubois v Industry Staffing Services Pty Ltd t/as Action Workforce (1999) 89 IR 430. The observations of Hungerford J set out above were made in the context of determining the appropriate penalty to be imposed following a plea of guilty. However, we consider that they are equally applicable when considering the liability of a labour hire company under the OH&S Act. A labour hire company cannot escape liability merely because the client to whom an employee is hired out is also under a duty to ensure that persons working at their workplace are not exposed to risks to their health and safety or because of some alleged implied obligation to inform the labour hire company of the work to be performed. In our view, a labour hire company is required by the OH&S Act to take positive steps to ensure that the premises to which its employees are sent to work do not present risks to health and safety. This obligation would, in appropriate circumstances, require it to ensure that its employees are not instructed to, and do not, carry out work in a manner which is unsafe. 51 In the present proceedings, whether the risk was present and capable of being known to the appellant is a matter we address under the next heading. The process of fact finding for the purposes of establishing a breach 52 The essential argument by the appellant under this heading was that because Kavanagh J never determined "what in fact occurred to result in the ceiling falling" she could not have been satisfied beyond reasonable doubt that a risk assessment would have led the appellant to prevent its employees from entering the ceiling space. Further, that a risk assessment would not have revealed the presence of a risk because the suspension system holding up the ceiling was, according to the expert evidence, adequate. What occurred, according to the expert evidence, to cause the ceiling to collapse was a combination of factors including that the ceiling was not properly affixed to the new northern wall; the removal of the dust suppression wall; and, the extra weight in the ceiling of the three employees. This led to "large and unintended forces being placed on the turnbuckles supporting the ceiling and leading to its collapse." 53 The appellant also submitted that even if the risk was present, it was not capable of being known by the appellant. To this extent reliance was placed on the judgment of Peterson J in WorkCover Authority of New South Wales (Inspector Smith) v Dubavo Pty Ltd (unreported, CT93/1247-1249, 24 July 1995) where his Honour said: The concept of failure by the employer involves necessarily a failure to take a step which the employer was able to take to avoid the relevant risk. Liability is not absolute in the sense that it must provide for the unknowable. If the risk is both present and capable of being known to be present, then liability is absolute, subject to the defences provided by s.53. Here, the nature of the risk involved was unknown to the farm manager, Mr. McLeod and unknown to the WorkCover engineer with some experience of augers, Mr. Patrick. The use of the auger in the way described was not in my view obviously dangerous or involving obvious potential risk. The reconstruction of the events demonstrated a degree of difficulty in achieving a collapse of the auger. Further, the circumstances of the collapse are not able to be established with any precision. In these circumstances, I consider that the prosecution has not established that there was a failure in the relevant sense. 54 This statement by Peterson J was endorsed by the majority in Drake at 451-452. However, the majority went on to elaborate their position at 452: The appellant contended that it had a reasonable expectation that Ms To would be working on the machine which was shown to Ms Waters when she visited the premises of Pala. It follows, it was said, that the appellant had no way of assessing any risks which may have been associated from the use of another machine. This risk created by the use of that machine, it is said, was a risk which the appellant could not predict or guard against. We consider that this submission is misconceived. Firstly, the submission focuses on the foreseeability of the alleged risk to safety. The authorities cited above establish that in order to demonstrate a breach of s 15(1) the prosecutor is required to prove the existence of a failure on the part of the employer which is causally connected with the risk to safety. There can be no failure on the part of the employer in not taking steps to preclude a risk which was impossible to anticipate: see Dubavo . However, the appellant goes further and submits that no breach of s 15(1) is committed where the employer does not know of the hazard and could not reasonably know about it. The concept of "reasonable foreseeability" is not, in our view, apt to be applied in relation to the duties owed under the OH&S Act. The duties imposed by the Act are not merely duties to act as a reasonable or prudent person would in the same circumstances: see Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467 at 469. Under s 15(1) the obligation of the employer is "to ensure" the health, safety and welfare of employees at work. There is no warrant for limiting the detriments to safety contemplated by that provision, to those which are reasonably foreseeable. Whilst employers are not liable for risks to safety which are merely speculative or unduly remote (see Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 at 50), the terms of s 15(1) specify that the obligation under that section is a strict or absolute liability to ensure that employees are not exposed to risks to health or safety. It is inappropriate to seek to substitute a different test for that specified in s 15(1). Secondly, the arguments advanced on behalf of the appellant in this respect erroneously concentrate upon the foreseeability of the particular circumstances of the accident in question. The general duties created by the OH&S Act are directed at obviating "risks" to the health, safety and welfare of persons in the workplace: see Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 158-159. The occurrence of an accident and the sustaining of injuries by an employee will certainly represent relevant evidence of the existence of a risk to the health and safety of employees and the seriousness of that risk. However, it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work. This consideration is carefully explained in the decision of the Full Court of the then Industrial Court of NSW in Haynes . Commenting on the reasoning of the trial judge, their Honours said (at 156-157): "The commencing point of her Honour's consideration of the evidence was the uncontroverted fact that the death of Mr Chen was caused by the front end loader hitting him as it came to a stop over the pit in which he was working removing the slurry. Her Honour then, correctly in our view, commented that "(t)he occurrence of the accident itself does not however establish the commission of the alleged offence": see Dawson (at 120-121) and McMartin v The Broken Hill Proprietary Company Ltd (unreported, Grove J, 5 February 1988, pp 7-8). But, her Honour then concluded, concerning the case against Manufacturing, that "(i)t needs to be established that some action taken by (Manufacturing), or the failure to take some action, was causally connected with the front end loader hitting Mr Chen. It seems to (her Honour) that to approach the question of the commission of the offence in any other way, would be to remove the requirement placed upon the Prosecution to establish, beyond reasonable doubt, that it was the Defendant which failed to 'ensure the health, safety and welfare at work' of Mr Chen and Mr Ding". The prosecution of Industries was considered by her Honour according to "(m)any of the comments … made in relation to the prosecution against Manufacturing"; again, a causal connection between some act or omission by Industries and the accident was found to be necessary. Her Honour focused attention on the accident itself, that is the front end loader hitting Mr Chen, as the relevant detriment to safety with which the respondent were charged. We think that approach emphasised too much the accident itself as the relevant detriment to safety of persons on the site. That overemphasis led to a misunderstanding by her Honour of the real facts disclosed by the circumstantial evidence and the proper inferences to be objectively drawn therefrom. Sections 15 and 16 of the 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 OHS Act, as its long title, indicates, has the prime purpose "(t)o ensure the health, safety and welfare of persons at work" and that stated purpose may only reasonably be achieved, it seems to us, by construing the general duties or obligation cast on employers by Div 1 of Pt 3 thereof (which contains ss 15 and 16) as both preventive and remedial in nature, that is, both before and after the occurrence of an actual accident. " We adopt that reasoning as a correct statement of law and principle in relation to s 15 of the Act. The importance of the observation that an offence under s 15(1) is constituted by the failure to ensure that employees are not exposed to risks, rather than the failure to prevent a particular accident, is immediately apparent when considering the submissions advanced by the appellant. The appellant submits that it could not have known of the existence of threats to safety arising from other machines, owing to the fact that it had a reasonable expectation that Ms To would be using only the machine which had been shown to Ms Waters. However, the failure of the appellant identified by the Chief Industrial Magistrate was the failure to give an instruction requiring the client or the appellant's employee to notify the appellant before transferring its employee to work on another machine. This makes clear that the risk to which the appellant was required to have regard was the risk that its employee would be instructed to work on an unsafe machine, or in a manner which was otherwise unsafe." 55 In the present proceedings, the approach urged by the appellant was that the Court must satisfy itself as to what caused the ceiling to collapse and then consider whether a risk assessment of the structural integrity of the ceiling could have revealed the cause of the collapse. If the assessment could not have revealed the cause of the collapse, the appellant argued that the risk was not capable of being known and, consequently, not reasonably foreseeable. 56 Ms McDonald submitted that this approach mistakenly focused on the accident and not the risk to safety. We agree. As in Drake, we think the appellant's submission falls into the trap of focusing upon the foreseeability of the particular circumstances of the accident in question. This led to a focus on what may have directly contributed to the accident - waterlogged ceiling panels, turnbuckles failing under the extra weight and the ceiling not being properly affixed to the northern wall - and whether these factors contributing to the accident were foreseeable. However, "It is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work": Drake at 452. 57 The risk, or detriment to safety, in this case was that the construction work on and around the trafficable ceiling might adversely affect its structural integrity, leading to its collapse. This risk was exacerbated by the work activity in the ceiling and water being absorbed into the ceiling panels. The inquiry we must make is whether it has been proven beyond reasonable doubt that there was a failure on the part of the appellant which was causally connected to the detriment to safety. 58 Summons No 605 of 1998 alleged a failure "To provide or maintain means of access to and egress from designated construction areas via means of the trafficable suspended ceiling over the Hanging Area, that was safe and without risks to health." In considering this allegation we think it must be said that the evidence showed a surprising lack of regard on the part of the appellant for its duty towards employees under s 15(1). 59 The appellant was contracted by Mainbrace to carry out electrical work at the Chisholm premises. In late January or early February 1996 the appellant accepted a variation of the contract with Mainbrace to disconnect thermostats from the "northern wall" as part of the preparation for demolishing and re-constructing that wall. The work of disconnecting the thermostats required employees of the appellant to enter the ceiling space above the Hanging Area. Access to and egress from the work to be done on the northern wall was via the trafficable ceiling. No inspection of the trafficable ceiling was undertaken by the appellant to ensure that it was safe. Mr O'Neill the service foreman/supervisor of the appellant went to the top of a ladder to look into the ceiling "back at the beginning of the job" but he did not carry out any inspection of the ceiling in a manner that would have enabled him to determine that it was safe for the appellant's employees and he did not make any inquiry about the potential effects on the ceiling of any construction work that was being, or was intended to be, undertaken. A "walk-through" of the premises was conducted at the commencement of the construction project and Mr Sleap, the service manager of the appellant, participated in that walk-through but it did not encompass the ceiling above the Hanging Area. Mr Sleap said he did not go into the ceiling space because "Usually ceilings are fairly safe structures". Mr Sleap did not make any inquiry about the potential effects on the ceiling of any construction work that was being, or was intended to be, undertaken. Mr Kane, the Chief Executive of the appellant, gave evidence that where it performed contracts over $1 million in value the appellant conducted a formal safety induction program for its employees on the site. However, the work level in the contract at the Chisholm site was not perceived as needing such a program. 60 The ceiling above the Hanging Area was supported in two ways: by chains suspended from the roof and by the northern wall to which the ceiling was attached by angle iron placed some 1200 mm apart. The northern wall was demolished and so the support provided by that wall was for a time removed. A dust suppression wall was erected between the northern wall and the Hanging Area to prevent contamination of meat products. The dust wall was fixed to the floor and the ceiling. The dust wall was not meant to be load bearing but the evidence was that it did in fact act to support the ceiling while the northern wall was demolished and re-constructed. Approximately one hour before the accident Mainbrace directed its employees to remove the dust wall. Acrow props, used as a safety measure to support the ceiling while it settled in a controlled way onto the northern wall, were also removed. After the dust wall and acrow props were removed, Mr Richard Deignan, a Production Manager employed by Chisholm, noticed that the ceiling in the Hanging Area was sagging. He notified Mr Peter Doring, Mainbrace's site foreman. Mr Doring went to find Mr Alan Bower of Thermal Insulations Pty Limited, the subcontractor which had erected the new northern wall, but in Mr Doring's absence the ceiling collapsed under the weight of the three employees of the appellant. 61 The work associated with demolishing and re-constructing the northern wall and the erection and dismantling of the dust wall, together with the work activity and presence of water in the ceiling space, clearly created a detriment to the safety of any person using the trafficable ceiling as a means of access to or egress from their workplace. Nothing was done by the appellant in these circumstances to ensure that its employees using the trafficable ceiling were not exposed to the risk to safety. The failure to take steps to ensure the safety of the trafficable ceiling as a means of access or egress led the appellant's employees to be exposed to the risk of the construction work adversely affecting the structural integrity of the ceiling. It was not necessary, in our opinion, for the appellant to be in a position to compel Mainbrace or the occupier of the premises to avoid or prevent the risk arising. It was clearly within the appellant's power to instruct employees not to use the trafficable ceiling until such time as it was satisfied that the risk had been removed and the trafficable ceiling was safe. We find the offence proven. 62 This brings us to the summons in No 606 of 1998, which alleged a failure to conduct a risk assessment of the structural integrity of the ceiling. The appellant submitted that a risk assessment would not have revealed any risk. Given the nature of the risk, namely, construction work adversely affecting the structural integrity of the ceiling, we do not regard as adequate a risk assessment confined to testing whether ceiling panels were waterlogged and/or testing the capacity of the turnbuckles to bear extra weight. The appellant should have been aware of all of the factors that might impinge on the safety of its employees using the trafficable ceiling. This flows from the duty to "ensure" the safety of its employees at work. The appellant had a duty to make a proper and comprehensive assessment of the risks to its employees associated with using the trafficable ceiling as a walkway. It is no defence for the appellant to say it was not aware of the construction work that might adversely affect the trafficable ceiling or it was not aware that the dust wall was to be removed at a time when its employees would be using the ceiling. Proper inquiry by the appellant, certainly after the variation to its contract to remove the thermostats on the old northern wall, would have revealed the nature of the risk. But there was no inquiry. Not even the physical state of the ceiling space, which moved Kavanagh J to describe it as "appalling", prompted the appellant to investigate whether the safety of its employees might be at risk. In failing to carry out a risk assessment the appellant exposed its employees to the risk of the construction work adversely affecting the structural integrity of the trafficable ceiling. We refer to what we said about the process of risk assessment in the Mainbrace appeal (Mainbrace Constructions Pty Ltd v WorkCover Authority of NSW (Inspector Charles) [2000] NSWIRComm 239) associated with this same incident and which is relevantly apt here: Mr Parker submitted that properly understood the evidence of Mr Henry, in particular, showed "that it was most unlikely that examination of the ceiling space would have revealed its likelihood of collapse." Given the nature of the risk an adequate risk assessment would have encompassed much more than the ceiling space. An examination of the ceiling space would have at least revealed the presence of excessive water, with the prospect of it having been absorbed into the ceiling panels, thereby increasing the weight of those panels. To what extent might not have been evident but a risk assessment would have at least raised the issue in the mind of the assessor. Further reflection on the state of the ceiling would have led to the realisation that with the work activity in the ceiling, the weight of workers and equipment would have placed even more stress on the capacity of the ceiling to cope with the additional load. Of course, a proper risk assessment would have also focused on the work associated with the demolition and re-construction of the northern wall - including the removal of the dust wall - and how it might affect the ceiling as a means of access and egress. This would have revealed that the ceiling would, for a period of time, be detached from the northern wall and, therefore, one of the main supports of the ceiling removed. It would also have revealed that the dust wall would necessarily become load bearing. Finally, it would have highlighted the need as an elementary safety precaution to ensure that there was no person in the ceiling at the time the dust wall and acrow props were removed and that no person entered the ceiling space until such time as it had been properly inspected to determine its safety. 63 The evidence does not reveal any prohibition or constraint on the appellant that would have prevented it from conducting an adequate risk assessment. We find the offence proven. 64 Summons No 607 of 1998 alleged a failure on the part of the appellant to instruct its employees that they must not utilise the suspended ceiling as an access way until its structural integrity had been assessed and confirmed. The appellant's employees received no instruction in relation to the use of the ceiling as an access way. The evidence did not reveal any fault on the part of the employees in using the ceiling as an access way; they complied with the warning signs as to loads and spacings. The failure of the appellant to instruct its employees that they must not utilise the suspended ceiling as an access way until its structural integrity had been assessed and confirmed exposed the employees to risk. We find the offence proven. Section 53 statutory defence 65 We have considered whether a defence has been made out under s 53. The section provides as follows: 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. 66 To establish a defence under s 53 the appellant must prove, on the balance of probabilities, either that it was not reasonably practicable to comply with the statute or that the commission of the offence was due to causes over which the appellant had no control and against the happening of which it was impracticable to make provision: Drake at 457; Sydney County Council v Coulson (1987) 21 IR 477 at 480; Italo Australia Construction Pty Ltd v Parkes (1988) 24 IR 428 at 431; WorkCover Authority of NSW v Kellogg (Aust) Pty Ltd (unreported, Walton J, Vice President, 19 October 1999 - IRC 97/4732, 4733). 67 The appellant submitted that in allowing employees to access the ceiling it had ascertained what restrictions were placed upon access and adopted those restrictions. Given that this was the approach adopted by the prosecuting inspector after the ceiling had collapsed the appellant submitted that it was difficult to see how it could not be held to be reasonably open, on the balance of probabilities, to find that the appellant had taken all steps which were reasonably practicable. Of course, the inspector was relying not only on the warning signs and advice about where to walk or not walk on the ceiling but also on an engineer's report following the accident that the ceiling was structurally adequate. 68 In WorkCover Authority of New South Wales (Inspector Glass) v Kellogg, Walton J, Vice President referred to the relevance of foreseeability in a defence under s 53. His Honour said: It is here that the question of reasonable foresight has relevance. If a defendant is able to demonstrate that the circumstances or causes of the detriment to safety constituting the offence were not reasonably foreseeable, it will generally have thereby established that it was not practicable to take measures to guard against that risk: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 363-364. In WorkCover Authority of NSW (Insp. Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381, for example, Hill J commented in relation to s53: "If the happening of an event is not reasonably foreseeable it is not practicable to make provision against it. When considering the matter of foreseeability, one should be careful not to substitute reasonable hindsight for reasonable foresight." This does not remove the obligation, to which I have earlier referred, of an employer to adopt a proactive approach to safety issues which seeks to discover and remedy potential risks to its employees and others. It is not a question of whether the employer did envisage a particular danger, but rather whether it should have. 69 The prospect of the construction work, on and in close proximity to the ceiling, having an adverse effect on the ceiling thereby leading to it collapsing and causing injury was, in our opinion, reasonably foreseeable. That being the case it was reasonably practicable to take measures to ensure the safety at work of employees, the most obvious being to instruct them not to use the ceiling as an access way until the risk had been eliminated. The defence under s 53 is not made out. Orders 70 We make the following orders:

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