Landmark Roofing Pty Ltd v SafeWork NSW

Nature of the appeal

1. This is an appeal pursuant to s 5AA of the Criminal Appeal Act 1912 (NSW). An appeal under this section is an appeal in the strict sense that it is necessary to show error (see Bulga Underground Operations Pty Ltd v Nash) [3] . The appellant can only succeed by establishing that the trial judge committed an error of law or applied the wrong principle in his fact-finding exercise [4] .
2. An issue arose to the power of this Court to order a new trial, having regard to s 5AA and the amendments made as a consequence of the observations of this Court in Bulga.
3. The respondent accepts that by the operation of s 5AA(4)(b)(ii), the Court now has a discretion to order a new trial, in respect of an appealable error that would have made a material difference to the outcome of the trial.

Background

1. The appellant was engaged by Benedict Recycling to replace roofing on the main shed of a site at Mayfield. The roof of the main shed consisted of solid corrugated material which had sustained fire and storm damage.
2. The original work on the main shed involved replacing approximately 2000 square metres of damaged roof sheeting. This work was undertaken using elevating work platforms to remove the damaged sheeting and to install safety mesh before using a crane to install new Colorbond metal roof sheets.
3. By 8 March 2018, most of the original work had been completed. Benedict Recycling requested that the appellant remove and replace two skylights in a section of the roof above an alcove. Replacing the skylights involved uplifting the skylight sections and replacing them with new metal sheeting ("the skylight replacement work").
4. At the time of his accident, Mr Asser was working on the roof undertaking the skylight replacement work under the direct supervision of the appellant's supervisor, Douglas Dart. Mr Dart was on the roof with Mr Asser. Just like Mr Asser, Mr Dart was wearing a harness but he was not connected to anything on the roof. There was no safety mesh underneath them in the area of the skylight replacement work.
5. At the time, there was a static line in place which ran along the ridge line of the shed. There was one rope on the roof, which was attached to this static line, but it was not attached to either Mr Dart or Mr Asser. There was a second rope which could have been used but it remained in the work utility at ground level.
6. Mr Asser fell through the damaged skylight which was comprised of brittle polycarbonate material. He fell approximately 6 metres from the roof onto a crane rail. As he fell, he struck his head on the rail inside the building. His legs became entangled in the rail, causing him to be suspended upside down until he was rescued.
7. As the trial judge found at [141]: "Mr Asser went to lift up the sheeting immediately next to the skylight so that Mr Dart could slide the new sheeting underneath it. Mr Asser swung his left leg over the skylight and stepped onto it. The skylight material was brittle. As he transferred his weight to his left leg the skylight cracked and he fell through it suffering fatal injuries."
8. Representatives from the respondent attended the site on the day of the accident. Statements were taken from Mr Dart and from Mr Ross Senior, who was the supervisor from Benedict Recycling.
9. A recorded interview took place between Inspector Halcroft and Mr Dean Beacher, the managing director of the appellant, on 5 April 2018.
10. On 14 March 2019, the respondent commenced proceedings against the appellant alleging that: "[o]n 8 March 2018 at 1A McIntosh Drive Mayfield West in the State of New South Wales, Landmark Roofing Pty Ltd being a person conducting a business or undertaking who had a health and safety duty under section 19(1) of the Work Health and Safety Act 2011 (the Act) to ensure, so far as is reasonably practicable, the health and safety of workers while the workers were at work in the business or undertaking, failed to comply with that duty and that failure exposed Brayden Asser and Douglas Dart to a risk of death or serious injury, contrary to section 32 of the Act."
11. For the purposes of the charge, the particulars of the risk were set out in Annexure A to the summons as follows: "The Risk 11. The risk was the risk to workers, in particular Mr Asser and Mr Dart suffering death or serious injury as a result of falling from height while working on the alcove roof."
12. The trial judge found that the nature of the risk was straightforward and obvious. The risk was the risk to workers suffering death or serious injury as a result of falling from height whilst working on a roof. Such a risk was outlined in guidance material available to the appellant. Indeed, his Honour found that it was known to appellant.
13. His Honour also accepted that it was readily foreseeable that the two young workers may become complacent having worked on the roof of the shed for several weeks without incident. The trial judge also found that Mr Beacher knew that his employees had been working on the roof without being hooked up on prior occasions.
14. The respondent identified six ways in which the appellant failed to comply with its duty under s 19 which it specified as the particulars of the charge as follows: "Particulars of the defendant's failure to comply with the duty under section 19(1) of the Act 12. The defendant failed to comply with its duty under section 19(1) of the Act and failed to ensure, so far as is reasonably practicable, the health and safety of workers, and in particular of Mr Asser and Mr Dart, in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate or, alternatively minimise, if it was not reasonably practicable to eliminate the risk; (a) Inspecting the alcove prior to the commencement of the skylight removal work to asses the fragility of the roof sheets and/or skylight; (b) Conducting a risk assessment of the specific skylight removal work being done on the alcove roof that would have identified the risk and the means, such as those identified at paragraphs (c) to (f) below, by which that risk could be eliminated or minimised; (c) Developing, implementing and enforcing a task-specific safe work method statement or safe work procedure for the specific skylight removal work on the alcove roof that addressed the risk and identified one or more falls arrest measures, such as the system set out at paragraph (d) below, to be implemented before any work on the alcove roof proceeded; (d) Requiring by direction and instruction the use of a fall restraint system comprising a harness, connected to a lanyard which in turn was connected to a static line in place at the roof level (the fall restraint system) when working on the alcove roof; (e) Instructing workers (including supervisors) not to work on the alcove roof unless they were using the fall restraint system; and (f) Supervising workers such that work on the alcove roof was stopped immediately if work was being performed without the use of the fall restraint system."
15. The trial judge made findings of a breach in respect of each of the particulars of the charge.
16. The trial was conducted over 4 days. The respondent called 6 witnesses although much of the evidence consisted of written statements and records of interview. There was an agreed statement of facts. To the extent that there was any cross-examination of witnesses, it was not extensive.
17. Plainly, Mr Asser died as a result of serious failures in the system of work which was adopted and was in place at the time of his fall. There is no dispute that both he and Mr Dart should have been connected to the static line by means of individual ropes (i.e. two ropes) running from each harness to the static line. If Mr Asser had been so connected then when the polycarbonate material collapsed under his weight, he might have fallen through but, because of the restraining rope, he would not have hit anything and would have only fallen a short distance.
18. Despite this very serious breach of the obligation owed to Mr Asser (and Mr Dart), the appellant maintains that its conviction was unreasonable and should be set aside.
19. The essential basis of its appeal is that it should not have been found to be responsible for the conduct of its supervisor, Mr Dart, in failing to ensure that Mr Asser was properly secured to the static line which was available on the roof of the shed.
20. The appellant accepts that, subject to its contention that it is entitled to a new trial as sought in the amended grounds of appeal, if it is responsible for the conduct of Mr Dart, then it could not succeed on this appeal.
21. The proposition underpinning the appellant's contentions is that the trial judge should have found that Mr Beacher provided specific and direct instructions to Mr Dart on the morning of the accident. The appellant submits that Mr Beacher instructed that Mr Dart and Mr Asser should be safely and properly secured to the static line at all times whilst undertaking the task required that day (being replacement of the skylight) but that Mr Dart decided to deliberately disobey that direction or instruction.
22. It is said that such deliberate disobedience means that the appellant should not have been found to be liable for Mr Dart's conduct, whether on a vicarious basis or pursuant to s 244(1) WHS Act.

Ground 1

1. This is a procedural fairness point.
2. The respondent adduced oral evidence from Mr Dart. He had earlier provided a statement to Inspector Sheerin (recorded in the inspector's notebook) and a further statement as recorded by Inspector Halcroft.
3. Although the respondent relied on Mr Dart's evidence, the appellant submits that Mr Dart's evidence at the trial directly contradicted the particulars of the charge against it, including: 1. that he was involved in an inspection of the skylight material before the work commenced to assess whether the skylights were brittle or fragile (relevant to particular 12(a)); 2. that he relied on his experience and presumed that the skylight material was brittle and approached the skylight replacement work on that basis (relevant to particular 12(b)); 3. that he had input into the SafeWork Method Statement (SWMS) for the works to be undertaken (relevant to particular 12(c)); 4. that, before the incident, he was instructed by the appellant to do the skylight replacement work by always using the static line (relevant to particular 12(d)); and 5. that, before the incident, he was instructed by the appellant not to work on the roof unless he was using the static line and the safety rope at all times (relevant to particular 12(e)).
4. The trial judge made adverse findings about Mr Dart's credibility and had no regard to his evidence on critical issues. There were a number of grounds to do so including that: 1. his evidence was inconsistent with Mr Beacher's evidence that not all workers on the roof would use the rope during the progress of work on the roof. Workers working 6 to 12 metres away from the edge undertaking the roof replacement work during the weeks prior to Mr Asser's fall would not use the rope on the basis that they were not near the edge and they were said to be not at a risk of falling through the roof having regard to the material; 2. when first spoken to by Inspector Sheerin (recorded in the inspector's notebook), Mr Dart was recorded as saying: "Doug detached his rope from his harness that was attached to (the) static line with turn buckles that was fixed along the east side of the roof. Brayden detached as well. Doug did not tell Brayden to detach, he just copied what he (Doug) did …"; 1. as the trial judge observed, this version was inconsistent with photographs taken on the day and contradictory to the later statement which he provided to Inspector Halcroft. The effect of what he told Inspector Sheerin on the day of the accident was that Mr Asser had been attached to the static line but detached himself without instruction to do so. That version was a fabrication; 2. Mr Dart's oral evidence was that when they were working on the first skylight, Mr Dart was roped on but Mr Asser was not. The trial judge accepted that Mr Asser was never provided with a rope at all on the day that the accident happened and that, if one rope was used, it was only used by Mr Dart when he was working near the first skylight; 3. in his recorded interview with Inspector Halcroft, Mr Dart said: "Q89 Why wasn't he hooked up? A Do you think I'd like to go back and change that? Q90 Yeah. But do you know why he wasn't hooked up? A: It was just, he just comfortable up there and --- Q91 Oh. A Obviously you never expect anything like this to happen."; 1. further, the trial judge preferred the evidence of Mr Senior, the Benedict Recycling site supervisor. Mr Senior recalled that the toolbox talk on the day of the accident was attended by Mr Beacher, Mr Dart, Mr Asser and himself; and 2. the trial judge made findings about the content of that toolbox talk as follows: 1. there was no discussion about the nature of the skylight material; 2. there was no discussion that the skylight was made of different material to the roof; 3. there was no discussion about reviewing the SWMS; 4. there was no discussion about whether there would need to be an inspection to assess the skylight material; 5. there was no discussion about a new risk assessment being done; and 6. there was no discussion to the effect that workers should not work on the alcove roof without being hooked up onto the rope.
5. The trial judge found Mr Senior to be an impressive witness and accepted his evidence, except that he found that Mr Senior was mistaken in his recollection that Mr Beacher also attended the toolbox talk that day.
6. The minutes of the toolbox talk recorded only three participants, not including Mr Beacher. The sign-on register did not contain any record of Mr Beacher coming to the site early in the morning on the day of the incident and Mr Beacher said he was not on site when the incident occurred and only attended after the incident.
7. The appellant submits that the findings of the trial judge at [80]-[106] essentially rejecting Mr Dart's evidence "affected the trial with procedural unfairness (and practical injustice to the applicant) constituting an error of law".
8. The appellant submits, in circumstances in which there is said to have been no challenge to Mr Dart's evidence, if his Honour was going to reject Mr Dart's evidence, he should have afforded the appellant an opportunity to be heard on the issue.
9. Acceptance or rejection of evidence of a particular witness is a matter for the trial judge. That the judge's findings were contrary to evidence not specifically challenged in cross-examination does not necessarily involve error or raise any point of law [5] . As in civil proceedings, the judge is not obliged to accept evidence if it is illogical or inherently unreliable or is contradicted by a credible body of substantial evidence [6] . However, the significance of absence of cross-examination of the other party, or any of that person's witnesses, may call for a different approach by the judge where the rule in Browne v Dunn applies [7] .
10. However, the point of Ground 1 is not to challenge the findings of fact but to contend that the alleged lack of procedural fairness necessitates that the appeal be allowed, and a new trial be ordered.
11. In particular, the appellant relies on the observations of Kirby P, (as his Honour then was), in Parker v DPP [8] as follows: "Fair procedure requires, at least for important decisions and those critical to the determination of a case, that considerations of importance to the judicial officer's conclusions should be drawn to the notice of the parties affected or their representatives so that a fair opportunity is presented for contrary argument to persuade the judicial decision-maker to a different view."
12. Further, the appellant relies on the observations of Gleeson CJ [9] at [37] in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam: "A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations … Whether one talks in terms of procedural unfairness or natural justice, the concern of the law is to avoid practical injustice."
13. Certainly, the concern of the law is to avoid practical injustice, but I doubt that the Chief Justice had the exchanges between counsel and the trial judge in mind when referring to the failure to take a procedural step.
14. The trial was a criminal trial and was governed by the Criminal Procedure Act 1986 (NSW). A jury is not required to give a warning to the accused that it may be thinking of rejecting a witness' evidence and ask for further submissions.
15. The precise content of the judge's obligations when conducting a trial alone with respect to procedural fairness must necessarily depend upon the conduct of the trial, the issues identified and the submissions of the parties.
16. There is no obligation on a trial judge to accept the evidence of a witness called by the prosecution merely because it has not been the subject of any direct or specific challenge by either the prosecution or the defence. The weight to be given to such evidence is a matter for the judge. Nor is there any correlative principle which mandates that a trial judge must draw the attention of the parties to any such evidentiary issue during submissions, subject to the application of the rule in Browne v Dunn in criminal cases, which was not relied upon by the appellant in this case [10] . Apart from anything else, it may be that in many instances, it is only on a thorough review of the transcript and all the evidence that a judge might form a view about whether to accept the evidence of a witness. What procedural fairness requires will vary in each case.
17. In this case, it must have been apparent to the appellant that there were inconsistencies in Mr Dart's evidence (in its various forms). Indeed, the trial judge raised an inconsistency during closing submissions.
18. It must have been apparent to the appellant that there were inconsistencies between Mr Dart's evidence and the evidence of Mr Senior which needed to be resolved by the trial judge for the purposes of making findings of fact.
19. Further, the respondent made written submissions in respect of the particular failure of the appellant to instruct its employees not to work on the alcove roof unless they were using the fall restraint system [11] . The respondent described the high watermark of Mr Dart's evidence as being speculative and reflective as distinct from giving any direct evidence that he was provided with any specific direction that he and Mr Asser had to be tethered to the safety line at all times. This submission was based on its own questioning of Mr Dart and his failure to respond directly to the questioning.
20. Whilst the appellant submits that the respondent relied on Mr Dart's evidence, the respondent did not submit that it should be accepted in every respect, particularly in relation to any instructions given to ensure that they were properly harnessed to the roof during the skylight replacement work.
21. I do not accept that, in rejecting Mr Dart's evidence without raising the prospect that he might do so during submissions, the appellant was denied procedural fairness.
22. I adopt the observations of R A Hulme J in Tweedie v R [12] as follows: "There is an air of unreality about this ground. It presupposes that during the course of a sentence hearing a judge is required to consider and reflect upon all that is placed before the court and indicate to the parties before delivering or reserving judgment any potential disagreement or non-acceptance in relation to individual matters despite the fact that the opposing party might not have contested them. Judicial proceedings, including sentence proceedings, cannot be conducted in that fashion."
23. In any event it is difficult to understand how the appellant could have suffered practical injustice in the sense of being deprived of the opportunity of making a submission.
24. The respondent called a number of witnesses. Plainly, there were inconsistencies in the evidence of the witnesses. The appellant must have known that it was the trial judge's task to determine which evidence adduced by the respondent to accept and which evidence adduced by the respondent not to accept. There can be no suggestion that the appellant was not afforded an opportunity to make such submissions if it chose to do so. As I have said, the respondent made submissions on the topic. The appellant made a specific submission about particular 12(d) as follows: "As then to 12(d), your Honour, Mr Dart's evidence was clear, abundantly so. He said that in toolbox talks with Mr Beacher he was told wearing a harness was compulsory on the roof and that they always had to be hooked up on that job."
25. His Honour was not required to respond indicating that he may not accept the submission.
26. The appellant has not established ground 1.

Ground 2

1. The appellant seeks to challenge a finding of fact made by the trial judge, said to be that Mr Beacher knew that the appellant's workers worked unhooked on the roof despite a direction to the contrary. This could only be a reference to the finding made at para [154] of the judgment as follows: "Mr Beacher knew that his employees had been working on the roof without being roped up on prior occasions."
2. Mr Beacher did not give evidence at the trial but participated in an interview with Inspector Halcroft on 5 April 2018 which was admitted into evidence.
3. In his record of interview at [A50], Mr Beacher said: "Um, once they got a few sheets down and they had a decent deck to work off, uh, then it was over to the bloke, who was down at the gutter line at the bottom of the roof, who was using his rope and the other two, which was six metres and 12 metres away from the edge, were working unhooked up".
4. The appellant highlights that Mr Beacher's statement that he knew that workers were working without being hooked up was only in reference to the earlier works and in places where, it says, it was permissible for the workers to be not hooked up (as they were a sufficient distance away from the edge of the roof). There is no evidence that Mr Beacher knew that the skylight replacement work was being undertaken without Mr Dart and Mr Asser being hooked up.
5. That is so, but the trial judge did not make any contrary finding. Further, the trial judge did not make the finding asserted in Ground 2, in the sense that there is no finding that Mr Beacher knew that the workers were working unhooked despite a direction to the contrary. The trial judge did not find that Mr Beacher knew that Mr Dart and Mr Asser were undertaking the skylight replacement work on the day of the accident without being hooked up.
6. The trial judge's finding about Mr Beacher's knowledge is directed to the question of foreseeability. His Honour found that Mr Beacher knew that his employees had been working without being roped up on prior occasions as part of his consideration that the activity on the day, being working on the roof without being hooked up, was foreseeable on the part of the appellant. There is nothing in para [105] of the judgment (in which his Honour also refers to Mr Beacher's knowledge) which suggests anything to the contrary.
7. I accept that the risks associated with the earlier work may have been different from the risks associated with the skylight replacement work. This hardly assists the appellant. The risks were different. Indeed, when after the accident, the appellant completed a further SWMS, it identified different risks. It identified potential hazards such as requiring inspection of the existing roof for fragile roof surfaces such as "polycarbonate roof sheeting".
8. Whilst Mr Beacher's answer was directed to a different part of the work, his Honour's finding related to the knowledge that the appellant's employees had worked without being hooked up during the process of work being performed by the appellant and it was foreseeable (and there must be a risk that) that this might happen again, for example, during the skylight replacement work. That is why there should have been a further SWMS in respect of the skylight replacement work.
9. The appellant's contentions misunderstand the finding made by the trial judge. The finding as made was open to the trial judge and consistent with Mr Beacher's answer at [A50] of his interview.
10. Further, for the same reasons as identified under Ground 1, I do not accept what appears to be another procedural fairness submission that his Honour was required to raise the prospect of the finding with the appellant during submissions.
11. Ground 2 is rejected.

Ground 3

1. The particulars of the breaches of s 19(1) are outlined at para [28] above.
2. Subject to a potential issue relating to a new trial, Mr Glissan accepted that the appellant could not succeed on the appeal if it is liable for the conduct of Mr Dart. This is because on the appellant's case: 1. Mr Dart was the supervisor entrusted by the appellant with the proper supervision of Mr Asser; 2. Mr Dart was specifically instructed that he and Mr Asser must be properly secured to the static line through the harness and ropes at all times whilst undertaking the skylight replacement work; and 3. the accident occurred because Mr Dart failed to follow that specific direction given by the appellant to him and because Mr Dart failed to ensure that Mr Asser was secured to the roof at all times whilst he was assisting in the skylight replacement work.
3. Mr Asser fell when he was standing right next to Mr Dart on the roof. He was the appellant's supervisor, albeit, a young and relatively inexperienced supervisor. However, the appellant appointed him as the supervisor and on the appellant's case, provided him with appropriate instructions and an SWMS so as to ensure that the work was done safely on the roof.
4. Leaving aside the differing versions given by Mr Dart, his evidence ultimately came to a position where he could not explain why he did not insist that a rope was used by Mr Asser.
5. It is the appellant's contention that Mr Dart deliberately disobeyed the instruction he was given and that in those circumstances the appellant should not be responsible for his conduct.
6. The appellant submits that it should not be vicariously liable for his conduct.
7. The appellant is liable for the conduct of Mr Dart, not based on the doctrine of vicarious liability, but because of the attribution section in the WHS Act. Section 244 is in the following terms: 244 Imputing conduct to bodies corporate (1) For the purposes of this Act, any conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate. (2) If an offence under this Act requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against a body corporate for that offence to prove that the person referred to in subsection (1) had the relevant knowledge, intention or recklessness. (3) If for an offence against this Act mistake of fact is relevant to determining liability, it is sufficient in proceedings against a body corporate for that offence if the person referred to in subsection (1) made that mistake of fact.
8. As set out in s 244(1), conduct of an employee acting within the actual or apparent scope of his employment is conduct also engaged in by the body corporate, being the appellant. It is not necessary to consider whether he was acting within his actual or apparent authority because Mr Dart was an employee of the appellant, rather than an independent contractor or agent.
9. The appellant submits that: 1. having regard to Mr Dart's experience, training and previous conduct, his conduct on the day was not foreseeable; and 2. Mr Dart must be considered to have knowingly taken only one rope onto the roof and decided not to hook up and not direct Mr Asser to hook up. This is said to be deliberate disobedient conduct which the appellant submits is outside the attribution function of s 244.
10. Mr Glissan was unable to provide any case in support of the proposition which he advances, which is really that in circumstances in which a site supervisor on a building site fails to follow the instructions of his superior (in this case, the managing director) deliberately, then the company would not be liable for his conduct and s 244 should not be construed in a way as to render it so liable.
11. Section 244 is clear in its terms. Any conduct engaged in by an employee acting within the actual or apparent scope of his or her employment is conduct also engaged in by the body corporate for the purposes of the WHS Act. There is no limitation in s 244 on the type of employee or the level of authority that the employee might have.
12. The only limitation expressed in s 244 is that it must be conduct engaged in on behalf of a body corporate by an employee acting within the actual or apparent scope of his or her employment.
13. As part of its submissions, the appellant emphasises that Mr Dart's conduct was deliberate and disobedient, rather than careless, inattentive, inadvertent or negligent. It submits that such deliberate and disobedient conduct was not foreseeable, referring, in particular, to WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor [13] per Walton J VP at [129] as follows: " … the unforeseeable behaviour of a disobedient employee may well lead to the happening of an event that could not be reasonably foreseen, and, therefore, which was not reasonably practicable for an employer to guard against."
14. His Honour's observations relate to the question of breach and foreseeability. In my view, whether or not an employer might foresee that an employee might act in complete disobedience of his instructions and whether or not such conduct is foreseeable, does not impact upon the application of s 244.
15. There is no qualification to s 244(1) to the effect that if the conduct of the employee, in this case, Mr Dart, was not foreseeable (as the appellant asserts), s 244 would not apply. Section 244 has the effect of attributing the conduct of one person to another, having regard to their relationship, not having regard to employer's state of knowledge of the possibility of the conduct occurring.
16. Further, the general proposition that deliberate disobedience of an instruction by an employee (at any level) on a building site is not foreseeable on the part of an employer might be viewed as novel.
17. The question is not whether the appellant could have foreseen that Mr Dart would act in the way that he did but merely whether in acting the way in which he did, Mr Dart was engaged in conduct within the actual or apparent scope of his employment.
18. If so, then that conduct is deemed to have been engaged in by the appellant and the appellant may be liable for a breach of s 32 WHS Act, even if only because of that conduct.
19. I hasten to add that the trial judge found that the appellant acted in breach of s 19 and was thus convicted under s 32 on a number of bases, not merely because it was responsible for the conduct of Mr Dart, but Ground 3 is directed only at the appellant's responsibility for the conduct of Mr Dart.
20. In conventional terms, a person being paid to work at a worksite as part of his employment and during the course of his employment would be acting within the actual or apparent scope of his employment unless he is off on a frolic of his own. That principle could not be in doubt. [14] As Gleeson CJ stated in New South Wales v Lepore: [15] "The antithesis of conduct in the course of employment is sometimes expressed by saying that the employee was 'on a frolic of his own'".
21. In Starks v RSM Security Pty Ltd & Ors [16] Beazley JA (Sheller JA and Grove J agreeing) stated: "…Whether or not an employer is liable depends upon the scope of the employment. Thus, an employer will not be vicariously liable for a wrongful act of the employee if it is committed by the employee 'on a frolic of his own' : see Morris v. C.W. Martin & Sons Limited [1966] 1 QB 716 at 733; State of New South Wales v. Lepore [2003] 212 CLR 511 at [41]. Such an act is not within the 'scope of the employment': As Gleeson CJ said in Lepore at [40]: 'Not everything that an employee does at work, or during working hours, is sufficiently connected with the duties and responsibilities of the employee to be regarded as within the scope of the employment. And the fact that wrongdoing occurs away from the workplace, or outside normal working hours is not conclusive against liability.' 13 It is well settled that an employer is liable for a wrongful act of the employee if the employer has authorised it. An employer may also be liable for unauthorised acts. That is also well settled. The difficulty that arises in the latter case is determining the circumstances in which an employer will be so liable. This was the question under consideration in Lepore. There Gleeson CJ restated, at [42], Salmond's formulation of the principle in Salmond, Law of Torts, namely that: '...an employer is liable even for unauthorised acts if they are so connected with authorised acts as they may be regarded as modes - although improper modes - of doing them but the employer is not responsible if the unauthorised and wrongful act is not so connected with the authorised act as to be a mode of doing it, but is an independent act.'"
22. Mr Dart was performing an authorised act in an unauthorised manner. He was authorised and instructed to perform the skylight replacement work. He was acting within the scope of his employment at all times, whether or not he chose to follow the appellant's instructions (if given) as to how he should perform the work.
23. Further, Ground 3 depends upon a finding that Mr Dart was being deliberately disobedient. It was not put to Mr Dart that he was being deliberately disobedient. Indeed, whilst it may be that the effect of his evidence was an acknowledgement that he should have ensured that Mr Asser was hooked up to the static line, the reasons why he did not were not identified.
24. The failure of Mr Dart to properly supervise Mr Asser and to instruct him and ensure that he was using a rope that was properly tethered to the rigid line is deemed to be the conduct of the appellant by virtue of s 244. There was no error on the part of the trial judge in so finding.
25. Plainly, such conduct represented a very serious breach of the obligations owed to Mr Asser which is no doubt why the appellant accepts that, subject to it being entitled to a new trial on its procedural fairness point, it could not be successful on this appeal without succeeding on Ground 3.
26. Ground 3 is rejected.

Ground 4

1. The appellant submits that the trial judge misdirected himself as to the onus of proof by requiring it to provide sufficient evidence of a defence.
2. The appellant submits that the onus is always on the prosecution to show that the means which should have been employed to remove or mitigate a risk were practicable [17] . The appellant submits that the trial judge wrongly approached the matter by considering the weakness of the appellant's defence rather than whether the respondent had discharged its onus of proof. The appellant identifies examples of this with reference to the statements of the trial judge including: "[159] There is no evidence that there was any specific inspection and assessment of the skylight area of the alcove roof before Mr Dart and Mr Asser started to remove and replace the skylights." "[162] The existing SWMS made no reference to the need for specific inspection of the skylight material…" "[171] Further, there is no evidence that there was a clear procedure in place for the workers to be hooked up by the rope to the static line at all times whilst they were doing the skylight removal work…"
3. His Honour then went on to refer to the absence of certain evidence from Mr Dart and, further, the absence of any explanation as to why Mr Asser was allowed to work on the roof without using the full restraint system.
4. However, para 4 of the judgment is in the following terms: "The prosecution bears the onus of proving the elements of the offence beyond reasonable doubt. There is no onus on the defendant. It is not for the defendant to prove its innocence. It is for the prosecution to prove the guilt of the defendant, and prove it beyond reasonable doubt."
5. Plainly, his Honour was mindful that the onus was imposed upon the respondent and not the appellant.
6. I agree with the submissions of the respondent that the statements complained of represent nothing more than conventional ways of stating that there is no evidence that something was done or that something happened. There was evidence from all of the persons directly involved being Mr Beacher, Mr Dart and Mr Senior. Having considered their evidence, his Honour observed that, for example, there was no evidence of any specific inspection and assessment of the skylight area. That was a correct statement of the state of the evidence.
7. Similarly, his Honour's statement that the existing SWMS made no reference to the need for specific inspection of the skylight material was, of course, correct. The statement that there was no evidence that there was a clear procedure in place for the workers to be hooked up by the rope at all times was also a correct summary of the state of the evidence having regard to all of the evidence that was adduced.
8. His Honour's observations do not suggest that he wrongly applied the onus of proof or that he required the appellant to prove its defence. His statements as to the absence of certain evidence correctly reflected the state of the evidence. Nothing in the judgment could be construed as a misdirection as to the onus of proof.
9. There is no merit in Ground 4.

Ground 5

1. The appellant submits that the trial judge erred in considering the ambit of the duty set out in s 19(1) WHS Act but only with respect to particulars 12(a), (b) and (c).
2. The premise of Ground 5 appears to be that the trial judge has adopted an inconsistent approach in considering whether the respondent had proved to the requisite standard that the measures which it identified that the appellant was obliged to perform were reasonably practicable to eliminate or minimise the risk.
3. The appellant relies on a number of passages contained in Kirk in which the Court considered the predecessor to the WHS Act being the Occupational Health and Safety Act 1983 (NSW). As the majority said at [14]: [18] "But it is the measures which assume importance to any charges brought. Sections 15 and 16 are contravened where there has been a failure, on the part of the employer, to take particular measures to prevent an identifiable risk eventuating. That is the relevant act or omission which gives rise to the offence".
4. It cannot be in dispute (as observed by the High Court in Kirk at [16]) that the onus was on the respondent to establish the means which should have been employed to remove or mitigate a risk were practicable. The respondent identified the six measures as set out in the particulars of charge at paras 12(a) to (f).
5. The appellant highlights the statement of the trial judge at [157] as follows: "Looking at each particular in isolation is liable to lead to error. For example, an inspection of the roof is not a step which by itself minimises the risk. A PCBU needs to make a risk assessment as a result of what is found upon inspection. That risk assessment should lead to the creation of a task-specific SWMS. But even if a SWMS is created, a piece of paper per se does nothing to minimise risk. A SWMS needs to be implemented and enforced. Workers, particularly young and inexperienced workers, need to be trained to recognise the risk and follow the newly specified procedures to minimise the risk. Then there needs to be observation and supervision to ensure that safety is being observed."
6. The import of the appellant's submissions is that, having stated that, for example, an inspection of the roof is not a step which would by itself minimise the risk or that the creation of an SWMS does nothing, per se, to minimise the risk, the trial judge erred in going on to find that they were both measures which could and should have been taken to eliminate or alternatively minimise the risk.
7. In my view, this is an exercise in semantics. The point made by his Honour at [157] was merely that, in accordance with common sense, carrying out an inspection without responding to the result of the inspection or preparing a new SWMS without adopting and following the SWMS would not have eliminated or minimised the risk.
8. Each of the measures identified in paragraphs 12(a), (b), (c), (d), (e) and (f) were measures which it was reasonably practicable to take or adopt.
9. Inspecting the roof and undertaking a risk assessment of the specific skylight replacement work would have identified the risks which the appellant needed to guard against. Those risks could have been the subject of specific reference in the task-specific SWMS.
10. Of course, inspecting the roof without adopting procedures based on the inspection or preparing a new site specific SMWS without complying with it would not eliminate or reduce the risk. That is why his Honour stated that each of the particulars should not be considered in isolation. Indeed, as submitted by the respondent, the appellant overlooks the critical findings of the trial judge at [158] to [162] of the judgment. The trial judge held the following at [162]: "A formal inspection of the roof was but one step in a proper approach to safety. The inspection would have identified the risk, which should have led to a revised or task-specific SWMS, which in turn should have led to the induction of Mr Asser into the new SWMS. By such steps Mr Asser would have been alerted to the danger and trained and instructed in how to avoid it."
11. In my view, nothing said in Kirk detracts from the correctness of his Honour's approach. His Honour had regard to the relevant acts or omissions which gave rise to the offence but did not do so in a vacuum or in isolation. As his Honour said, the inspection of the roof and the preparation of a new and specific SWMS were reasonably practical steps along the way to eliminating or minimising the risk.
12. Further, it is only necessary to refer to the observations of this Court in Bulga per Bathurst CJ, Hidden and Davies JJ: "127. For the purpose of s 8 of the Act, the relevant question on causation is whether the act or omission of the employer was a significant or substantial cause of the employee being exposed to the risk of injury. 128. Thus, in the present case, it was necessary to establish whether the failure to appoint an SAC was causally related to the risk of the employee's safety which occurred on the evening in question. That question is to be determined by the application of common sense to the facts in question, appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen [1991] HCA 27; 172 CLR 378 at [17] (Mason CJ), [19] (Deane and Dawson JJ), [15], [21] (Toohey and Gaudron JJ)."
13. In my view, no error has been demonstrated in the findings on the particulars (a), (b) and (c) and Ground 5 is rejected.

Conclusion

1. The appellant has not succeeded on any ground.
2. The appeal is dismissed.
3. There is no order in relation to the costs of the appeal proceedings. The order in relation to costs at first instance in the court below remains undisturbed.

Endnotes

1. SafeWork NSW v Landmark Roofing Pty Ltd [2020] NSWDC 202.
2. SafeWork NSW v Landmark Roofing Pty Ltd (No 2) [2020] NSWDC 420.
3. (2016) 93 NSWLR 338; [2016] NSWCCA 37 at [96].
4. Bulga at [96].
5. Day v SAS Trustee Corporation [2021] NSWCA 71 at [53] (Meagher JA, Payne and White JJA agreeing).
6. Hamod v State of New South Wales [2011] NSWCA 375 at [336]-[340]; Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [110]-[112].
7. Browne v Dunn (1893) 6 R 67; MWJ v The Queen [2005] HCA 74; 80 ALJR 329 at [39] (Gummow, Kirby and Callinan JJ).
8. (1992) 28 NSWLR 282 at 296.
9. (2003) 214 CLR 1; [2003] HCA 6.
10. The appellant's complaint is directed to the trial judge's non-acceptance of the evidence of a prosecution witness, not the appellant itself or any of its witnesses (as to which the appellant called none): cf MWJ v The Queen at [38].
11. See Respondent's submissions in Court below at paras [69]-[70].
12. [2015] NSWCCA 71 at [26].
13. (2004) 135 IR 166; [2004] IRComm 207.
14. Deatons Pty Ltd v Flew (1949) 79 CLR 370; [1949] HCA 60 at 379 (Latham CJ) and 382 (Dixon J).
15. (2003) 212 CLR 511; [2003] HCA 4 at [41].
16. [2004] NSWCA 351 at [12]-[13].
17. Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [16] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
18. Kirk (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

Amendments 27 May 2021 - Order 2 and paragraph [124] amended to remove order for costs. 28 May 2021 - New paragraph [124] inserted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 May 2021