Supreme Court of Tasmania|2009-05-12|Before: Porter J

Kent v Gunns Limited [2009] TASSC 30 (12 May 2009)

CITATION: Kent v Gunns Limited [2009] TASSC 30

Industrial Law - Industrial safety health and welfare - Tasmania - Occupational health and safety legislation - Duties and offences - Workplace Health and Safety Act 1995 (Tas), s9(1) - General duty to ensure the safety of employees so far as is reasonably practicable - Particular obligations created by s9(1)(a)(i) - (iii), (b) and (c) - Separate offences not created by virtue of each of the paragraphs - General duty may be proved by breach of particular obligations.

Diemould Tooling Services Pty Ltd v Oaten [2008] SASC 197; (2008) 101 SASR 339; Miekeljohn v Central Norseman Gold Corporation Limited (1998) 19 WAR 298, applied.

Industrial Law - Industrial safety health and welfare - Tasmania - Occupational health and safety legislation - Duties and offences - Failing to ensure the safety of employees so far as is reasonably practicable - Charge dismissed after hearing before magistrate - Motion to review dismissal - Whether finding of guilt the only finding reasonably open on the evidence - Considerations of elements of the offence - Workplace Health and Safety Act 1995 (Tas), s9(1).

Slivak v Lurgi (Australia) Pty Limited [2001] HCA 6; (2001) 205 CLR 304; Dinko Tuna Farmers v Markos [2007] SASC 166; (2007) 98 SASR 96, applied.

Judgment Number: [2009] TASSC 30

1 This is a motion to review an order of a magistrate made on 13 June 2008 dismissing a complaint against the respondent. Three charges had been laid by the appellant under s9(1) of the Workplace Health and Safety Act 1995 ("the Act") arising from an accident at the respondent's sawmill at Smithton. On 24 August 2006 an employee suffered an injury to his hand whilst clearing a blockage from a conveyor used to remove sawdust and wood debris.

2 The Act, s9(1), provides as follows:

"(1) An employer must, in respect of each employee employed by the employer, ensure so far as is reasonably practicable that the employee is, while at work, safe from injury and risks to health and, in particular, must -

(a) provide and maintain so far as is reasonably practicable -

(iii) plant and substances in a safe condition; and

(b) provide facilities of a prescribed kind for the welfare of employees at any workplace that is under the control or management of the employer; and

(c) provide any information, instruction, training and supervision reasonably necessary to ensure that each employee is safe from injury and risks to health.

(a) a body corporate, a fine not exceeding 1 500 penalty units; or

(b) a natural person, a fine not exceeding 500 penalty units."

3 The motion to review relates only to the second charge on the complaint. The first charge alleged a failure to provide and maintain a safe system of work, "contrary to" the Act, s9(1)(a)(ii). The third charge was that of failing to provide reasonably necessary supervision "contrary to" the Act, s9(1)(c). The third charge was made referable to s9(1)(a)(iii) and was in the following terms:

"2 That on or about the 24th August, 2006 the defendant, Gunns Limited, being at all times an employer within the meaning of the Workplace Health and Safety Act 1995, and exercising management or control over a workplace, being the Smithton Green sawmill at Smithton in Tasmania, did fail to ensure, so far as was reasonably practicable, to provide and maintain plant in a safe condition when on the said date at the said workplace, while clearing a blockage from an unguarded conveyor the employee, Geoffrey David House, sustained injuries to his two middle fingers of his right hand CONTRARY TO Section 9(1)(a)(iii) of the said Act."

"1 The learned magistrate erred in fact and/or in law in finding that the defendant's failure to provide a guard on a machine was not a breach of s9(1)(a)(iii) Workplace Health and Safety Act 1995 ('the Act');

2 The learned magistrate erred in fact and/or in law in placing insufficient or any evidentiary weight upon the requirement for the defendant to comply with the relevant Australian Standards regarding the operation of conveyors;

3 The learned magistrate erred in fact and/or in law in finding that officers of Workplace Standards Tasmania did not see any reason for a machine to be guarded; and

4 The learned magistrate erred in fact and/or in law in finding that the defendant could have done no more than it did to prevent the injury to the worker."

Particulars as to this charge were provided. Those particulars read:

1 failed to provide and maintain guards in accordance with Australian Standard (AS1755 Conveyors);

2 failed to provide guards so as to ensure that persons using the relevant conveyor were not exposed to risks to their health and safety."

5 Ground 1 was not argued separately. It was said to be encompassed within the other grounds. I take that to mean that if any of the errors alleged in the other grounds are made out, then it follows that ground 1 is made out. As can be seen, ground 1 relates to the ultimate finding whilst grounds 2 - 4 relate to specific factual matters; that is, to particular findings of fact, and the magistrate's approach to the evidence.

6 The magistrate's decision means that it had not been established that the respondent had failed to provide and maintain so far as was reasonably practicable the relevant "plant" in a safe condition. The grounds of the motion relate to questions of fact. As such, the decision is to be treated in the same way as an appeal from the verdict of a jury. This is not an appeal by way of rehearing and it is not for this Court to weigh the evidence and reach its own conclusions; Richardson v Shipp [1970] Tas SR 105 at 117, Australian Securities and Investments Commission v Hosken (No 2) [2000] TASSC 12 at [7], Phillips v Arnold [2008] TASSC 6 at [13], Murray v Maingay [2008] TASSC 18 at [13].

7 On this motion I am concerned with the question of whether the magistrate's decision was reasonably open on the evidence; that is, whether on the evidence the only conclusion reasonably open, judged by the criminal standard of proof, was that the respondent was in breach of the Act as alleged. To use the words of Green CJ in Leonard v Newell [1983] Tas R 78 at 81, I should "allow the motion only if I am satisfied that on no reasonable view of the evidence could the learned magistrate have failed to be satisfied beyond reasonable doubt of the guilt of the respondent."

8 Mr House was working on what is known as a flitch rig sawdust conveyor which is located in the basement of the "green mill". The conveyor is used to remove sawdust and small pieces of wood from the vicinity of saw operations. It is made up of an endless chain with metal cleats set at right angles to the line of travel. The chain and cleats run along the bottom of a metal trough and drag the debris along. The trough is constructed of metal with upright metal sides and is open at the top but with mesh covering it, at least until just before the end point where the accident occurred.

9 The accident occurred at what is known as the "tail end" of the conveyor. At this end there is the electric motor which drives the conveyor, together with drive sprockets. Also at this end, the sawdust and debris seem to be dropped onto a further conveyor for continued removal. Also at this end is an isolation switch for the drive motor. This is attached to an upright metal beam which is in turn attached to one side of the conveyor trough. The switch is a rotary type with plain markings of "OFF" at about 10 o'clock on the dial, and "ON" at about 2 o'clock.

10 The evidence established that if the conveyor became jammed by an obstruction, a warning siren sounded. Although there was a degree of uncertainty about the precise details, generally the system operated in such a way that the siren stopped after a brief time, at which point "the machine tries to restart itself". If the conveyor was still not able to move, the siren sounded again, with the process being repeated until the conveyor rid itself of the obstruction, or the obstruction was removed by the intervention of a worker. It seems that a blockage could occur frequently during a day, or a week could elapse without incident.

11 Mr House's evidence was that at about 1pm on 24 August 2006 he heard the siren and understood that the conveyor had stopped or was jammed. He said that he went to the conveyor and saw that one of the cleats was jammed against a steel plate which seems to operate as a form of scraper. He turned the isolation switch on and off thinking that the conveyor "might jump and come free". He made sure the switch was off and then put his hand down in the conveyor to release the cleat from where it had jammed. When he released it, "the chain took off". His hand was caught between the cleat and the steel plate. As a result, he lost the tips of two fingers on his left hand.

12 It was made plain that the isolation switch, when in the off position, cuts off the power to the conveyor drive motor, rather than "on" being an indication of power isolation. Accordingly, when the switch is in the off position the conveyor is not capable of operating. On that basis, it would have been in the on position at the time the siren sounded and Mr House went to fix the problem. His specific instructions were to turn the switch off before attempting to remove any obstruction. Notwithstanding his evidence that he had done so, it was an agreed fact that he had not. Thus, he had attempted to remove the blockage whilst there was still power to the conveyor drive motor. Accordingly, the conveyor would have been attempting intermittently to start itself, and could continue operating immediately the obstruction was removed.

13 As to the siren warning system, after some prevarication as to whether it sounded continuously or intermittently, Mr House said that the siren was not continuous when activated, but that, "It'll go down real dull and then it'll come up again." He agreed that when the isolation switch was turned off, the siren stopped sounding. He said that he was "pretty sure" that the siren was sounding when he reached in to remedy the blockage, and agreed that he "very clearly understood" that in the event of having to remove an obstruction from the conveyor, he was to turn the isolation switch to the off position before attempting to do so.

The state of the conveyor at the time of the accident

14 Ms Manuela Rabe, an inspector with Workplace Standards Tasmania ("WST"), gave evidence of her inspection of the conveyor on the day of the accident. She described the features of the conveyor, agreeing that it was "slow moving". A number of photographs taken by her were tendered. She also gave evidence of an inspection which had been carried out on 9 July 2002. This was done in company with an inspector senior to her, and appears to have been a routine inspection of the whole of the mill. Ms Rabe said that the reason for the inspection was to establish that the employer was complying with its obligations under the Act, and amongst other things to check plant and equipment to ensure they were in a safe condition. She agreed that on such an inspection if it was thought something might create a danger, for instance lack of appropriate guarding, that would be raised with the employer. On occasions that might result in a notice issued pursuant to the Act, s38(1), which enables an inspector to serve a notice requiring certain things to be done under threat of penalty for non-compliance.

15 Ms Rabe said that an inspection of the mill was carried out in the company of the mill manager, Mr Wayne Jackson. She said that it was not necessarily a detailed inspection but more a matter of "familiarisation", although some areas of concern were identified. She agreed that they were, as part of their role, "looking for things that needed to be fixed" and looking for potential problems. One of the particular things being looked for was inadequately guarded nip points. That was described as "where the moving part of a conveyor comes in contact with another moving part or a fixed part and presents a possibility of nipping ..."; that is, if a person were to make contact "it will draw you in". She agreed that they had identified a problem with an unguarded waste conveyor which was located "under the head rig area". This conveyor is a different one from the one on which Mr House was injured but it is in the same location. It runs from an area underneath the steps leading to the basement area. Ms Rabe agreed that the point where Mr House was injured was about 1½ metres away from those steps. She gave evidence about finding a nip point on the in-feed roller of a machine and the guarding was regarded as inadequate. Directions were given about installing appropriate guards to both these machines.

16 Ms Rabe was shown an unidentified document and confirmed that about eight areas and items had been "identified" and "actually discussed". None of these included the flitch rig waste conveyor. As to her inspection of that conveyor the following exchange occurred in cross-examination:

"Q: And if you went over there you - the flitch rig waste conveyor - I'll just make sure I'm calling it the right thing, the flitch rig conveyor - what that those stairs are on [sic] shown in photograph number one was in the same condition on the 9th July 2002 as it was on the day of the accident 24th August 2006 when you went and inspected the site wasn't it?

A: (pause) - To my knowledge I have no recollection.

Q: Okay. You don't recall any change in the flitch rig conveyor between 9th July 2002 and the 24th August 2006?

_A: As I indicated earlier that was my visit to that site - _

_A: And to be familiar with every item of equipment or plant in the basement - _

Q: - That wasn't my question Mrs Rabe. My question was, you don't remember any change?

A: I do not recall seeing the flitch rig sawdust conveyor and recollecting that as being an item of plants that draw my attention and the need to guard.

Q: Right. Right. And you don't recall whether there were any changes between its condition then on the 9th July and its condition on the 24th August 2006?

A: As I cannot recall the said conveyor I cannot comment on any changes.

Q: Yeah. Okay. All right. Do you recall whether you and Mr Geeves discussed that conveyor?

Q: The flitch rig conveyor, this - the one where Mr House injured his fingers on the 24th August?

Q: No. Now I just want to be clear about this, do you say that you didn't discuss it or you just don't remember whether or not you did?

Q: Right. So do I take it then that you and Mr Geeves didn't discuss that conveyor?

A: (pause) - It would be - the items that are on that document that you have been referring to are the items that we actually discussed.

Q: If a problem with that conveyor had been identified you would have discussed it wouldn't you?

A: Oh yes, we would have taken the same steps as you have already identified in that document there that you are reading from."

17 Mr Jackson also gave evidence as to the inspection on 9 July 2002. He said that he believed it covered the whole mill. As to the immediate area of the accident, he said that the company was required to install a handrail on the steps to the basement area and to put a guard over the waste conveyor under the head rig. He was asked whether there was any direction given about the flitch rig sawdust conveyor. He said "I've got an idea that there was no mesh on the top of that either. I think we was told to put mesh across the top" [sic]. His further evidence in cross-examination was as follows:

"Q: Now were you given any direction to put any mesh over the end of the flitch rig sawdust conveyor where Mr House caught his hand - his fingers?

18 The magistrate heard evidence from Mr Stephen Quilliam, an employee of some 30 odd years' experience at the mill who had worked on the flitch rig conveyor. He confirmed that if the machine was blocked the siren sounded and then stopped as the machine tried to restart itself. If it was still unable to move the siren sounded again. On the occasion Mr House was injured, Mr Quilliam heard the siren several times so he went to the flitch rig conveyor. It was he who found that the isolation switch was on. He turned it off and removed the obstruction from the conveyor. In evidence which is somewhat at odds with that of Mr House, Mr Quilliam said that the conveyor was blocked by "a lump of wood ... going crossways" which he removed with a crowbar.

19 Speaking generally of the unblocking procedure, he described a simple process of turning the switch off, clearing the blockage and turning the machine back on again. He said that in the 30 odd years he had been working at the mill he was not aware of any accidents on the flitch rig conveyor, nor had he heard of any close calls. Mr Quilliam also said that in the years he had been at the mill, he had been aware of safety inspections, firstly from what was then the Department of Labour and Industry, and more recently WST, and of checks of the basement area having been conducted. He said that no changes had been made to the flitch rig conveyor at the time he had been at the mill apart from repairs and maintenance.

20 The complainant also called evidence from Mr Darryl Horton, the respondent's foreman. He too had worked at the mill for a considerable period; some 28 years, and had been foreman for about 2½ years of that time. He described the warning siren as sounding for about three or four seconds and then after a delay of about 20 seconds to half a minute, sounding again if the blockage is not removed. "It will continue to do that all day if no one fixed it". He confirmed that if the isolation switch was turned off, the siren would not keep sounding. He said that on this particular occasion, he was talking to Mr House on the floor above, when the siren sounded. Mr House went off downstairs and about 30 seconds later came back, obviously injured. Mr Horton said that the siren "kept going" in the time between when Mr House left and when he came back. Mr Horton also gave evidence from which it can be inferred that blockages with the conveyor mostly, if not always, occurred at or near the tail end. He said that "w_here the block-up occurs is about three feet from the where the isolation switch is_ ...".

21 A number of witnesses gave evidence about the use of a "danger tag" system. Ms Rabe placed photos in evidence which showed a plastic tag with, on one side, the words "DANGER - DO NOT OPERATE - Maintenance Department. This lock/tag may only be removed by ... Name:.../Dept." On the other side were the words "DANGER. This energy source has been LOCKED OUT Only the individual who signed the reverse tag may remove this lock/tag". There was evidence of instruction to the employees as to the use of these tags. Mr Quilliam said that the tags were used when there was a problem with a machine. The purpose of the tag was to act as a warning; "So no one else can start it up". He said that when an employee was clearing a blockage from the conveyor there was no need for the tag as "the person who was doing the clearing has always got control of the isolation switch". This was confirmed by Mr Horton.

What happened to the conveyor after the accident?

22 Ms Rabe said that on the day of the accident she directed the company to undertake "a thorough hazard identification and risk assessment process" and to implement "appropriate control measures" before the conveyor was to be returned to service. She was asked whether, when that direction had been given to the company, she had been guided by any Standards. In a non-responsive answer she said that she was "familiar with the Australian Standard 1755, which deals with conveyor safety and standards"; more particularly, as she went on to explain, design, construction, installation and operation and safety. She returned to the mill on 21 September 2006, at which time guarding at the tail end of the conveyor had been installed.

23 This was described as a hinged guard with an "interlock switch" which operated so that "once the hinged guard is in the open position it means that the conveyor cannot restart while the guard is in the raised position". Photographs of this installation were also tendered. The guard is effectively a four-sided steel mesh box surrounding the previously open tail end of the conveyor. Access to this end of the conveyor is by moving a handle and lifting the top section of the box. Moving the handle triggers the interlock switch which means, according to Ms Rabe's evidence, "that once the hinged guard is in the open position;... the conveyor cannot restart while the guard is in the raised position".

24 In cross-examination Ms Rabe agreed that the interlock switch operated on the control circuit relating to the conveyor and not the actual power circuit. This means that the control mechanism is de-activated but the power is still being supplied to the drive motor. Ms Rabe agreed that the control circuit might short out or there might be a fault and for those "unpredictable reasons" one should never rely on an interlock switch alone, but additionally ensure that the power source is also isolated. She agreed that one of the problems with interlock switches is that they could lull operators into a false sense of security.

25 Mr Horton also gave evidence as to this issue. He described the interlock switch which is triggered by opening the guard, the effect of which is to automatically stop the chain from turning. In cross-examination the following exchange occurred:

"Q: Do you know what - are you aware that this conveyor has two circuits to operate it?

Q: There's a power circuit and a control circuit?

Q: The interlock switch is on the control circuit isn't it?

Q: It might be possible that the control circuit might fail for some reason, it might short for some reason, and so the interlock switch wouldn't work, that's possible isn't it?

A: That is highly possible but not if you isolate it off as well.

Q: Yeah, and that, well, that's the critical thing isn't it?

A: That's, well, that's what we tell them to do now.

Q: Yeah, well, that's what you told them to do before isn't it?

26 This Standard was tendered by consent without any reference to the basis upon which it was being tendered. It is a publication of the Standards Association of Australia and is entitled "Conveyors - Design, Construction Installation, and Operation - Safety Requirements". Paragraph 5.3.1 reads as follows:

"Minimum clearance of moving parts. Where there is a risk of personal injury from any nip point or shear hazard, between any moving part of the carrying mechanism of the conveyor and any attachment fixed thereto, and any fixed portion of the conveyor structure and any other equipment, the clearance shall be not less than 90mm. Where this minimum clearance is not practicable, the clearance may be reduced provided that the nip point or shear hazard is effectively guarded."

"Nip points and shear hazards. Guards shall be provided to prevent accidental contact with nip points or shear hazards where the nip point or shear hazard exists up to a height of 2.5m above any floor, platform level, or stored goods or materials."

28 At the close of the prosecution case before the magistrate, the respondent called no evidence. Submissions were made to the magistrate by counsel. On behalf of the respondent, it was submitted that as to the first particular, the failure to comply with the Standard had not been proved, and that as to the second particular, it was submitted that the case was not one of a failure to guard: "It is not a case of inadequate guarding because whatever guarding exists would have to be removed to clear the blockage, to do what House was doing. ... The only protection then is to ensure the power switch is turned off. ... The system did that ...".

29 In his submissions to the magistrate, counsel for the appellant made no reference at all to the Standard.

30 Having set out parts of the evidence, the magistrate said that the obligations under s9 of the Act are not absolute. His Honour quoted from the judgment of Underwood CJ in National Foods Milk Ltd v Smith [2006] TASSC 24 at [31]. The quoted passage reads as follows:

"Insofar as the respondent based his claim on breach of statutory duty, he first relied upon the provisions of the Workplace Health and Safety Act 1995 ('the Act'), s9(1)(a) and (c). These statutory provisions are reproduced in the particulars set out in the statement of claim and repeated at par15 of these reasons for judgment. The statutory obligations are only imposed insofar as is 'reasonably practicable'. With respect to the meaning of that expression, enacted in a comparable statutory environment, McHugh JA said in Kingshott v Goodyear Tyre & Rubber Co Australia Ltd (No 2) (1987) 8 NSWLR 707 at 728:

'In my opinion s 40 on its proper construction does not impose an obligation to provide and maintain safe means of access which is only excused if the occupier of the factory can prove that it was not reasonably practicable to do so. The verbs "shall be provided" and "shall be maintained" are qualified by the phrase "so far as is reasonably practicable". Thus the obligation which the section imposes is a qualified one. It is an obligation to provide safe means of access only "so far as is reasonably practicable". Likewise the obligation imposed by s 40(2) is conditioned by the words "so far as is reasonably practicable". Accordingly, the onus lies on anybody alleging a breach of the obligation imposed by s 40(1) to show that the occupier failed so far as was reasonably practicable to provide safe means of access to the place at which the person had to work.'

See also Interstruct Pty Ltd v Wakelam (1990) 3 WAR 101 at 110."

31 The magistrate referred to the comments in WorkCover Authority (NSW) v Arbor Products (Aust) Pty Ltd [2001] NSWIRComm 50; (2001) 105 IR 81 at 99 [45] that the duty to provide a risk-free work environment is a duty owed not only to the careful and observant employee, but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that is reasonably foreseeable. (In the passage cited from the Arbor Products case, reference was in turn made to McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306, amongst others.) His Honour said that those comments applied notwithstanding that they were made in relation to a provision which imposed an absolute duty, and went on to correctly note that the question of what is reasonable turns upon the facts of each case.

32 When referring to Ms Rabe's evidence, his Honour said:

"She confirmed that she had been to the mill on a previous occasion on the 9th of July 2002. Although she and another inspector were at the mill on that day and were in the basement there were no directions given by them for any further guard, at that stage, to be placed on the conveyor. She confirmed that if a problem with the conveyor had been identified then there would have been discussions and directions given as to it. They were not. I accept that if any problems with the conveyor had been identified then a direction would have been given and I am satisfied after hearing the evidence from the mill employees that any direction would have been immediately carried out and complied with."

"Count 2 caused me greater difficulty, but at the end of the day, I am not satisfied that the failure to provide guards in this case, at that time, was a breach of s9(1)(a)(iii). In this case it was not the failure of providing the guard that caused the accident but the action of the worker himself. In my view there must be some fault on the part of the defendant, the mere fact that a guard had not been fitted does not necessarily mean that a breach of section 9(1)(a)(iii) was committed. It can be clearly inferred that Workplace Safety when they visited the mill on the 9th of July 2002 and [sic] did not see any reason for a guard. It is clear that there had not been any problem as that encountered by Mr House before. There is also evidence of the presence of the guard, as now exists, still does not prevent a possible reoccurrence if the worker does not take the obvious precaution of isolating the area. There was no reason for the defendant to believe that the employee would not act in a reasonable way. There was no reason for them to believe that he would act directly contrary to what he had been instructed to do. While these matters alone may not given an excuse, together they are facts that must be taken into account in assessing whether I can be satisfied beyond reasonable doubt that the complaint has been made out. I accept that the protection here was to ensure that the area was isolated, that is the power switch was turned off. The company could do no more than it did. I cannot be satisfied beyond reasonable doubt that there was a breach of 9(1)(a)(ii)."

In his reasons for decision, the magistrate made no reference to the Standard.

The offence created by the Act, s9(1)

34 The issue was not addressed in argument but it seems to me that for the purposes of dealing with this motion, I should examine the proper construction of the Act, s9(1), and what actually constitutes the offence with which the respondent was charged. I say this because there seems to have been an assumption underlying the conduct of the prosecution, that a separate offence is created in respect of each of the particular obligations specified in s9(1)(a)(i) - (iii), (b) and (c). I do not think that this assumption is correct. Such a debate about the effect of similar and virtually identical provisions has taken place in other jurisdictions, with different results depending on the particular wording of the provision.

35 Section 9(1) of the Act is virtually identical to s19(1) of the Occupational Health Safety and Welfare Act 1986 (SA), which was considered by the Full Court of the Supreme Court of South Australia in Diemould Tooling Services Pty Ltd v Oaten [2008] SASC 197; (2008) 101 SASR 339. At 345 Doyle CJ (with whom White J agreed) said:

"[19] In my opinion it is not the natural or ordinary meaning of s 19(1) to read it as providing that an employer must, so far as is reasonably practicable, ensure that a worker is safe from injury and risks to health, and that the employer must independently, and without reference to the requirement just stated, comply with each of the lettered paragraphs. On that approach, each of the lettered paragraphs except para (c) imposes a free-standing duty that operates without reference to the obligation in the opening words of s 19(1). I consider that it makes more sense to read s 19(1) as containing, in effect, a single instruction or command, that being found in the opening lines of the provision. What follows is an indication of the reach of that instruction or command.

...

[21] A contravention of the statutory command in s 19(1) is proved only by proving that, at a particular time and at a particular place of work, and in relation to an employee or employees, the employer failed to ensure so far as reasonably practicable that an employee was, or employees were, safe from injury and risks to health.

[22] That contravention might be proved by proving acts or omissions which do not fall within para (a), (b) or (c) of s 19(1), although having regard to the scope of those paragraphs this is unlikely. Alternatively, the contravention might be proved by proving a contravention of one or more of those paragraphs, or by proving several contraventions of one or more of those paragraphs. But, I emphasise, what is in question is a contravention of the statutory command, and not merely a contravention of the paragraph. If, taken together, the relevant acts and omissions in their factual context give rise to a single contravention of the statutory command, there is but one offence. That is because the offence is the contravention of the statutory command found in the opening words of s 19(1), and a particular contravention may be (but will not necessarily be) the result of a number of acts or omissions." (my emphasis)

36 Gray J took a different approach to the actual issues which were before the court but also came to the same essential conclusion. At 376 his Honour said:

"[159] As earlier observed, the purpose of s 19(1) is to compel employers to take preventative measures to ensure worker safety. The provision is designed to protect employees. The obligation on the employer is to ensure safety. That requirement is moderated by the limitation "so far as is reasonably practicable". The statutory duty is a duty to protect against all risks to workers if the suggested protection is reasonably practicable. The statutory duty is breached when there is a failure by an employer to ensure safety in the terms of the section. No doubt an act or omission will give rise to the relevant failure but it is the failure to ensure safety that gives rise to the breach of duty. What particular act or omission or combination of acts and omissions, whether separately or collectively, give rise to the failure is a matter to be determined in each particular case. It is self-evident that circumstances may arise where a number of acts and omissions contribute cumulatively to a relevant failure.

...

[161] This analysis clearly suggests that s 19(1) of the Occupational Health, Safety and Welfare Act gives rise to the one offence with respect to each employee. In my view the construction contended for by the respondents is to be preferred. A similar construction was advanced concerning the interpretation of s 22(2), which I accept for the same reasons."

37 Part of the discussion in the Diemould case centred on the fact that there was a separate offence-creating provision which provided that a person who contravened or failed to comply with a provision of the Act was guilty of an offence. In the case of the Tasmanian Act, an offence is created by words in each of s9(1), (2) and (3). In my view that does not alter what I see to be the proper construction of s9(1). If anything, it reinforces the proposition that separate offences are created by each of the subsections, but not by each of the paragraphs or sub-paragraphs within those subsections.

38 A similar conclusion to that in the Diemould case had been reached by the Full Court of the Supreme Court of Western Australia in Miekeljohn v Central Norseman Gold Corporation Limited (1998) 19 WAR 298, when considering a slightly different, but still very similarly worded, section (s30B(1) of the Mines Regulation Act (WA)). At 533 - 534 it was held by Anderson J (with whom Owen and Walsh JJ agreed), that s30B(1) created only one offence and that a count which charged a failure in terms of one or other of the lettered paragraphs of s30B(1) was not a proper charge of an offence. His Honour said that "the matters set out in the lettered paragraphs are intended to be no more than expatiations on or exemplifications of how the general duty may be breached". (See also Boral Gas (NSW) v Magill (1995) 37 NSWLR 150.)

39 Given the general wording of the duty imposed by s9(1), the question arises as to what constitutes a breach. In the Diemould case, Doyle CJ at 348 said:

"[31] A contravention of s 19(1) of the Act can be described as constituted by a state of affairs rather than individual acts or omissions. That reflects the fact that the contravention of the statutory command is the failure to ensure, so far as is reasonably practicable, safety from injury and risks to health.

[32] But a contravention of s 19(1) will be the result of an act or omission by an employer, that gives rise to a contravention of the section at an identified place (where an employee is at work) and in relation to an employee or employees who must be shown to be affected by the contravention, because of the failure to ensure so far as is reasonably practicable that the employee is or employees are safe from injury and risks to health."

(See also, in a similar vein, Anderson J in Miekeljohn at 535).

40 Because of the similarities of the provisions under consideration in those cases, the construction adopted should be applied to the Act, s9(1). (I observe that in Lactos Pty Ltd v Kent [2003] TASSC 82, Slicer J at [1] adverted to this construction issue. His Honour noted that no objection had been raised as to duplicity in respect of two charges under s9(1)(a)(ii) and (c).) Under s9(1) therefore, the offence is made out by proof that an employer failed to ensure so far as was reasonably practicable that an employee was, while at work, safe from injury and risks to health. A breach of the particular obligations referred to in the subsection would ordinarily, but not necessarily, be relied on to establish the offence.

41 If I am correct as to the assumption which seems to have been made in this case, there is nothing to suggest that the hearing miscarried in any way. Strictly applying the construction of s9(1) which I have discussed, there were three charges laid under s9(1) each alleging a breach by reference to particular statutory obligations. On that basis, the reference to s9(1)(a)(iii) in the second charge was a particularisation of the way in which it was said the respondent had breached the single obligation imposed by s9(1). Further particulars of that allegation were supplied, and the respondent was thus fully aware of the case which was to be made against it. Breach of the general duty imposed by s9(1) can be established by proof of (at least) one of the particular obligations specified in the paragraphs of s9(1). On that basis, it cannot be said that the magistrate misdirected himself as to the law in any material way.

42 There is one additional matter. As further particularised, the second charge was based on the failure to comply with Standard AS-1755 and a failure "to provide guards". However, it is generally relevant to note that the appellant sought to establish a breach of the Act by reference to the circumstances in which the injury was suffered. This sort of situation was referred to by the court in R v Australian Char Pty Ltd [1999] 3 VR 834. At 847, having stated that proof of an offence was not dependent upon there having been an accident and injury to an employee, continued:

"So, considerations apposite to the common law tort of negligence are not, in the context of an alleged breach ... necessarily confined by a requirement of foreseeability of injury to a particular employee, that employee having in fact suffered injury. That does not mean, however, in the event that an accident has occurred and injury has been sustained, that the prosecution is precluded from conducting its case on a narrow basis. That was here the situation. The prosecution sought to establish breach ... simply by reference to the circumstances in which injury was sustained ... It was not obliged to take such a course in principle; but that is the forensic choice it made."

43 There are a number of authorities which have discussed the nature of offences such as that created by the Act, s9(1), which contain as a qualification on the duty, the use of the expression "so far as is reasonably practicable" or similar expressions. In addition to National Foods Milk Ltd v Smith, I make particular reference to Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1991) 170 CLR 249 at 262 - 263, Chugg v Pacific Dunlop Ltd (No 2) [1993] 3 VR 934 at 940 - 945, R v Australian Char Pty Ltd (above) at 846 - 847, Slivak v Lurgi (Australia) Pty Limited [2001] HCA 6; (2001) 205 CLR 304 at 319 [39], 324 [58] and 322 [88] - 336 [98] and (especially) Dinko Tuna Farmers v Markos [2007] SASC 166; (2007) 98 SASR 96 at 104 [26] - 109 [44].

44 From these authorities the following propositions as to the s9(1) offence can be distilled:

•

the primary element of the offence is the failure to ensure so far as is reasonably practicable that each employee is safe from injury and risks to health. The obligation created is not an absolute one.

•

there is no general rule or test for measuring whether the obligation has been met.

•

the onus is on the prosecution to establish such a failure.

•

the determination of the element involves a value judgment.

•

"reasonably practicable" means something narrower than physically possible or feasible.

•

what is reasonably practicable is to be judged on the basis of what was known at the relevant time.

•

what is reasonably practicable is a question of fact.

•

to determine what is reasonably practicable, it is necessary to balance the likelihood of the risk occurring, against the cost, time and trouble necessary to avert that risk.

•

whilst it may be expected that similar considerations to those which arise in the determination of a breach of the common law duty, may also arise when considering a breach of the section, common law requirements should not be imported as elements of the offence.

•

forseeability of risk of injury is likely to be a subject for consideration when reaching a determination as to whether the element of ensuring safety so far as was reasonably practicable has been made out. However, such a consideration does not import common law requirements into s9(1) as an element of the offence.

45 When considering the issue of foreseeability and the broader issue of practicability, the dangers of the use of hindsight must be borne in mind. In the common law context, Gummow J in Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330 [65] said: "Whether reasonable care was exercised in the particular case is a question of fact going to the breach of any duty owed, not to the existence of that duty. In each case, the question of whether reasonable care was exercised is to be adjudged prospectively, and not by retrospectively asking whether the defendant's actions could have prevented the plaintiff's injury". That admonition applies in relation to workplace safety prosecutions; R v Australian Char Pty Ltd (above) at 846, Slivak v Lurgi (Australia) Pty Limited (above) per Gaudron J at 322 [53].

46 The second issue is one to which the magistrate adverted in this case. It is that allowance must be made for the fact that inattention or misjudgement are common features of everyday work, and the chance of haste, carelessness, inadvertence, inattention and even unreasonable or disobedient conduct, must be recognised; see also R v Australian Char Pty Ltd (above) at 846, Tenix Defence Pty Ltd v MacCarron [2002] WASCA 165 per Heenan J at [45].

47 Counsel for the applicant submitted that the respondent had a "clear duty to comply with AS-1755 and had it done so the machine would have been guarded prior to the events of 24 August 2006." He observed that as the magistrate had made no mention of the Standard, it was not possible for this Court to ascertain what, if any, consideration the magistrate gave to the "requirement" under the Standard.

48 The issue which needs to be considered is the status of the Standard in the sense of whether and to what extent, if any, it governed or affected the activities of the respondent on and before the date of the accident. As I have noted, the Standard was tendered by consent. There was no evidence relating to it other than Ms Rabe's stated familiarity with it. A similar situation arose in Chicco v City of Woodville (1990) Aust Tort Reports 81-028. At 67,895 King CJ said:

"Publications containing safety standards approved by the Standards Association of Australia were admitted by consent. These standards do not have legal force, except, of course, to the extent that they may be given such force by a particular statute. They had no legal force in the circumstances of the present case. It is permissible for an expert on safety to have recourse to such published standards, if he sees fit, as one of the sources from which he informs himself as to matters relating to the subject on which he is expert. But the standards, of themselves, have no legal or evidentiary force."

49 At the same page, Cox J said that viewed "testimonially", the standards appeared to be expressions of opinion. At 67,897, Millhouse J said that the standards were "merely the expressions of opinion of people speaking under the aegis of the association". Later, his Honour said:

"I suggest tender of the Standard should not have been allowed. As it was, it got in by consent and there it is. I reiterate though, that such a 'Standard' is not evidence."

50 In short, a Standard such as AS-1755 is merely a guideline without any legally binding effect. In the absence of statutory embodiment, their relevance in any proceedings would only be to the extent that there has been expert evidence as to the extent to which they express good practice; see Reed v Peridis [2005] SASC 136 at [39] and Hughes v Van Eyk [2008] NSWSC 525 at [68].

51 There is no law, and there was no evidence before the magistrate, to suggest that AS-1755 was something that the respondent was required to obey or would have been well advised to observe. Of itself, the Standard added nothing to the appellant's case before the magistrate. Although count 2 was particularised as including a failure to provide and maintain guards in accordance with AS-1755, there was also a particular relating to a failure to provide guards so as to ensure persons using the conveyor were not exposed to risks to health and safety. That particular contained no reference to the Standard. The case as to count 2 was thus squarely put on the basis of a failure to guard the conveyor, and in his reasons, the magistrate addressed the absence of the guard at the time of the accident and the later installation of the switch/guard.

52 The Standard added nothing to the appellant's case at the hearing. From all of that, it follows that this ground is without merit.

53 This ground attacks the magistrate's statement that it can be clearly inferred that WST officers, when they visited the mill on 9 July 2002, did not see any reason for a guard. This is contained within the magistrate's reasons when dealing with count 2, which I have set out above. I have also set out his Honour's earlier reference to the evidence of Ms Rabe. Two issues were identified as arising under the umbrella of this ground. The first is that the magistrate effectively transplanted the relevant duty from the inspectors from WST. The second is that the "clear" inference which the magistrate drew was not reasonably open on the evidence.

54 As to the first point, I think that it involves reading far too much into what the magistrate said. In my view, what his Honour did say can reasonably only be taken as a recognition of a factor which was relevant to the position of the respondent prior to the accident. It would be a factor in any consideration of what was reasonably practicable in the circumstances, to contemplate that an inspection of the flitch rig sawdust conveyor and its surrounds had been carried out by WST officers and that, whilst a direction had been given in relation to the guarding of an adjacent piece of equipment, no similar direction had been made as to this conveyor, or at least as to the particular part of the conveyor involved in Mr House's accident.

55 The second point requires further consideration of the evidence. The submission is based on the passage of Mrs Rabe's evidence which I have set out in par[15] above. The complaint is that this evidence shows that Ms Rabe had no recollection at all of seeing the flitch rig sawdust conveyor and that the final answer given by her was pure conjecture and reconstruction. Mr Stanton, for the respondent, submitted that the whole of the evidence as to this issue needs to be looked at.

56 The evidence of Mr Jackson as to the July 2002 inspection establishes that Mr Geeves and Ms Rabe inspected the flitch rig conveyor. Directions were given as to the installation of a handrail near to the flitch rig conveyor, and a guard on a different, but nearby, conveyor. That evidence, taken in conjunction with Ms Rabe's evidence as to the purpose of the inspection, and what actually occurred, is in my view a sufficient basis for the inference which the magistrate drew and hence it was one which was reasonably open.

57 This ground asserts that the magistrate made a finding that the respondent could have done no more than it did to prevent injury to the worker. However, it is not immediately apparent that such a finding was made. I have already set out the material parts of the magistrate's reasons, but for convenience' sake will repeat the directly relevant comments:

"I accept that the protection here was to ensure that the area was isolated, that is the power switch was turned off. The company could do no more than it did."

58 Put in its context, this statement that the company could do no more than it did, can be seen as relating to the notion of ensuring, by training and instruction, that the power switch was turned off before any attempt was made to remove a blockage, and not to any broader issue. As a consequence, the ground so framed, should fail. In reality though, the ground raises the ultimate issue of whether the only conclusion reasonably open to the magistrate was that a breach of the Act as alleged, had occurred.

59 I have already pointed out that the question for the magistrate was whether the general obligation created by s9(1) had been breached by proof of a contravention of s9(1)(a)(iii), as further particularised, and viewed in the context of Mr House's accident. This meant that the focus of the alleged failure to guard was the failure to guard it in such a way which would have prevented that accident. That is, in other words, the alleged failure was a failure to put in place before the accident, what was put in place afterwards.

60 This requires looking at the way the conveyor operated. It did not require manual operation or constant attention. An employee was only required to be in very close proximity to it and carry out physical work on it when it stopped as a result of a blockage and required remedial action. The well established procedure was to first go to the isolation switch which was quite close to where the blockage most usually, if not invariably, occurred. The very well understood procedural requirement was to switch the power off. Only then would the employee attempt to remove the blockage.

61 Until a blockage was remedied, the siren was sounding intermittently and kept sounding until the conveyor righted itself or the power was switched off. The siren, depending on how quickly the person was carrying out the task, served as a warning in the event the power had not been switched off. The risk of an employee forgetting or simply not bothering to turn the power off was no doubt foreseeable in strict terms. However, factors of inadvertence and inattention "may be of considerable cogency in cases where the work of an employee exposes him constantly to the risk of injury unless there is unremitting care on his part but, in the nature of things, it cannot be of importance in the case of casual or isolated tasks of a simple character and which do not involve any real risk if ordinary care is used"; Smith v The Broken Hill Pty Co Ltd [1957] HCA 34; (1957) 97 CLR 337, per Taylor J at 342. Turning off the power was not a difficult or onerous task and the task of "unblocking" the conveyor was required to be carried out rather irregularly. In terms of actual knowledge of the risk, a like occurrence had not occurred for the approximate period of 31 years as covered by the evidence. There was no evidence that it had occurred at all.

62 The guard which was installed was, in a sense, not so much a guard of a moving part, but part of a means by which a control switch was activated in order to gain to access to the particular area and which ensured that the conveyor would not operate whilst a blockage was removed. Although such a possibility remained even with the new system unless the power was also switched off, it did mean that ordinarily an employee could not attempt to remedy a blockage without the conveyor being stopped.

63 The magistrate was faced with the task of making a judgment which involved a balancing exercise. He referred to a number of those factors in the passage from his reasons which I have set out. Apart from ground 3, no complaint has been made as to the reliance on these factors. All in all, it must be said that the likelihood of an employee in Mr House's position doing what he did was slight, and although serious harm could eventuate, the severity of potential harm was not of catastrophic proportions, given the nature of the conveyor. Although there was no evidence as to the cost and degree of difficulty involved, it would seem that the installation of the guard was practicable, in the strict sense, before the accident. However, whether or not there was a relevant failure is to be assessed on the basis of what was known or ought to have been known at the material time.

64 It is at that time that the assessment needs to be made of the likelihood that harm would arise, the magnitude of the potential harm, the nature of the measures that could have been taken to eliminate or minimise the risk (given the basis upon which the prosecution alleged the relevant failure), and the ultimate effectiveness of remedial measures. I would accept that reasonable minds may differ as to the outcome of the exercise of judgment which the magistrate was required to make. It cannot be said that a finding of guilt was one which was not reasonably open. However, in all of the circumstances, I am not persuaded that the only conclusion reasonably open to the magistrate was that guilt had been established beyond reasonable doubt.

Health and Safety Act 1995

Kent v Gunns Limited [2009] TASSC 30

At a glance

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Judgment (130 paragraphs)

Kent v Gunns Limited [2009] TASSC 30 (12 May 2009)

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Legislation Cited (1)

Cases Cited (12)