Legge v Coffey Engineering Pty Ltd

APPELLANT Ms P E McDonald of counsel Solicitor: Mr G Phillips Carroll & O'Dea LEGAL REPRESENTATIVES: RESPONDENT Mr J V Agius SC and Mr E Cox of counsel Solicitor: Mr M Atkinson Bateman Battersby

JUDGMENT: - 34 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: WALTON J, Vice-President GLYNN J HUNGERFORD J Friday, 7 December 2001

INSPECTOR PATRICK LEGGE v COFFEY ENGINEERING PTY LIMITED

Application for leave to appeal and appeal against a decision of an industrial magistrate, Ms P O'Shane, given on 10 October 2000 in Matter No CIM 1742 of 1999. JUDGMENT OF THE COURT [2001] NSWIRComm 319

1 This is an application for leave to appeal and, if granted, an appeal by Patrick Legge, as an inspector of the WorkCover Authority of New South Wales, against a decision of an industrial magistrate, Ms P O'Shane, given on 10 October 2000. Her Worship dismissed an information brought by the appellant alleging that the present respondent, Coffey Engineering Pty Limited, had breached s 15(1) of the Occupational Health and Safety Act 1983. The appeal was brought pursuant to s 197A of the Industrial Relations Act 1996 which provides for appeals against acquittals in proceedings for offences against occupational health and safety legislation.

2 The initiating information before her Worship charged the respondent in the following terms : Breach of Section 15(1) of the Occupational Health and Safety Act 1983. The defendant, Coffey Engineering Pty Ltd on 7th January, 1998 at 2115 Castlereagh Road, Penrith in the State of New South Wales, being an employer, failed to ensure the health, safety and welfare at work of all its employees, in particular Andrew David Jones.

3 The information particularised the alleged offence by describing it in the following way : On the said date the defendant, at the said place, being an employer, failed to ensure the health, safety and welfare at work of all its employees, and in particular Andrew David Jones, in operating a Circular Saw, in that the defendant:

a) Failed to carry out any or an adequate assessment into the hazards associated with work to be performed on a circular saw serial No S1323-5 which machine its employee Andrew David Jones was required to operate;

b) Failed to ensure that a safe system of work had been provided and maintained for the operation and use of the circular saw serial No S1323-5 that would have ensured the health and safety at work of its employee Andrew David Jones.

c) Failed to ensure that its employee Andrew David Jones had been adequately trained, provided with relevant information and adequately supervised so as to ensure his safety whilst operating the said circular saw.

d) Failed to ensure that plant namely a circular saw on which its employee Andrew David Jones was required to perform work was safe and without risks to health. In particular, it failed to ensure that the riving knife on the said saw complied with Clause A1.2.3. of the Australian Standard AS 1473-1991.

4 The respondent pleaded not guilty to the charge. The said contraventions in pars (a), (b) and (c) were then the subject of a defended hearing before her Worship but the allegation in par (d) was not pressed.

5 It was not in dispute that the respondent conducted a general engineering business and provided also from time-to-time labour to other employers for the installation of machinery at the premises of those employers; this was effected by way of a labour hire arrangement between the respondent and the other employers concerned. It was pursuant to such an arrangement, under which labour was organised on the telephone on a needs basis in an informal way, that the respondent made available the services of one of its employees, Andrew David Jones, to Crane Enfield Metals Pty Limited to perform grouting work under the base of a machine and which involved the use of a circular saw to cut timber. The relationship between the respondent and Crane Enfield Metals for the supply of labour was of long-standing and had existed for nearly 30 years. Mr Jones commenced working for Crane Enfield Metals at its Penrith factory premises on 2 January 1998 and the work proceeded uneventfully for the next few days. However, on 7 January 1998, while operating the circular saw Mr Jones sustained severe lacerations and bone damage to his left hand requiring he be off work for about six weeks.

6 The appeal was filed on 6 November 2000, six days after the expiration of the 21-day statutory time limitation period within which an appeal was to be brought so that it was necessary to obtain an extension of time. On 22 December 2000, Wright J, President granted such extension: see Legge v Coffey Engineering Pty Ltd (No 1) (2000) 103 IR 282. The respondent, pursuant to s 187 of the Industrial Relations Act, thereupon made application for leave to appeal and appeal against the President's decision; on 5 April 2001, the Full Bench refused leave to appeal: see Coffey Engineering Pty Ltd v Inspector Legge (2001) 105 IR 234. The present appeal proceedings before us are, therefore, competent and we move to determine the issues.

7 In the decision, Ms O'Shane outlined the terms of the offence and the details of the arrangement between Crane Enfield Metals and the respondent whereby the latter supplied to the former the services of Mr Jones who was a 21-year old trades assistant. Her Worship observed that Mr Jones, who had not previously worked for Crane Enfield Metals at its Penrith factory, arrived at the site and "was shown around the premises ... shown the circular saw on which he was to perform operations ... was not shown how to operate the machine ... the only instruction/s he was given was to ensure that the guard on the machine was down ... was not shown how to use a push stick, nor was he instructed about the use of the riving knife and apparently he was not familiar with those tools". Although, as the decision recorded, Mr Jones' evidence was "that he had not received any information, training or instruction from the Defendant labour hire company on the use and operation of the saw", her Worship nevertheless found : However, as stated by Mr Coffey in evidence, there could have been little or no expectation on the part of the Defendant company that Mr Jones would have been required to use a circular saw in doing a grouting job; although he conceded that the job could in some circumstances entail the use of such machine. The Court accepts Mr Coffey's evidence on that point.

8 Her Worship described the incident which occurred in this way : The statement of facts sets out the evidence that was subsequently adduced to the Court, that is, Mr Jones was operating a circular saw to cut a piece of timber lengthwise, when his right hand with which he was holding the timber, approached the saw he lifted his right hand, and attempted to pull the length of timber through the saw from the back, using his left hand. As he put it, the blade kicked the timber back to the front of the machine, and his left hand followed. He sustained injury, consisting of severe lacerations, and bone damage to the first joint of his left index finger, as a consequence of which he was off work for six weeks.

9 After finding, in the circumstances at the relevant time of being asked to do some grouting, that it would be unrealistic to expect the respondent to provide or ensure supervision of Mr Jones in the operation of the circular saw, her Worship reasoned as follows : As indicated at the outset, this prosecution is brought against the Defendant company on the basis of s 15(1) of the Act, which imposes a heavy duty on the employer. That duty however does not amount to strict liability - as the IRC has on occasion reminded us: there must be some nexus between a safety incident and the employer's failure to meet its obligations as set out in s 15 of the Act.

In the present case, whilst the Court is satisfied that the victim suffered injury in the course of his employment, whilst using a machine in respect of which he had received no adequate training, nor relevant information, the evidence is not capable of satisfying the Court beyond reasonable doubt that the offence charged against the Defendant is proved. In the result, the information was thereupon dismissed.

10 The notice of appeal contained an application for leave to appeal but the primary submission made by the appellant's counsel, Ms P E McDonald, was that an appeal under s 197A was as of right and not subject to the leave requirement of s 188 of the Industrial Relations Act. In the alternative, counsel said leave to appeal should be granted. Mr J V Agius SC, who appeared with Mr E Cox of counsel for the respondent, put that leave was required and relied upon the reasoning of the Full Bench in Drake Personnel Ltd, t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at pp 444-449 as to an appeal under s 197 of the Industrial Relations Act requiring leave. The consideration of this aspect by the Full Bench in Drake Industrial was by reference to the nature of the appeal created by s 197 being an appeal stricto sensu and not as a hearing de novo: see Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 and Re Solicitors (State) Award (No 3) (1996) 72 IR 225. That is, the appeal was governed by the principles applicable to appeals generally brought under Pt 7 of Ch 4 of the Industrial Relations Act and, as such, the leave requirement of s 188 applied. The Full Bench concluded in Drake Industrial (90 IR at p 449) : In the context of a prosecution brought before the Local Court in respect of an offence committed under the OH&S Act, we are satisfied that Parliament intended to guarantee the right of a person convicted of such an offence to obtain review of that conviction by providing an avenue of an appeal, albeit by leave, to the Full Bench.

11 Of course, those comments in Drake Industrial were made in relation to a s 197 appeal which, even though like here being to a Full Bench of this Court from a Local Court, provides for an appeal in criminal proceedings against any conviction or penalty imposed for an offence; a s 197A appeal as here, on the other hand, is concerned in criminal proceedings with a challenge to an acquittal in a Local Court or before a judge of this Court. In a sense, therefore, it may be thought in the scheme of appeals under the Industrial Relations Act that an appeal by a prosecutor against an acquittal would be an even stronger case for requiring leave to appeal than an appeal against a conviction.

12 The question of leave being required to bring an appeal under s 197A arose in WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 but in which the Court (Walton J, Vice-President and Boland J, Kavanagh J dissenting but agreeing on this point) found it unnecessary to decide whether leave to appeal was required because, as their Honours in the majority said (at pp 91-92 in par [18]) - "if leave to appeal is required, leave should be granted in this matter. ... raises important questions as to the construction and application of s 18 of the (Occupational Health and Safety) Act". In the present case, the notice of appeal identified the following questions as being raised by the appeal : (i) The nature of the offence created by s 15 of the OH&S Act.

(ii) Whether in proving an offence under s 15 of the OH&S Act the Prosecution must prove every particular to the offence.

(iii) Whether Her Worship's failure to provide reasons or adequate reasons was an error of law.

(iv) Whether the Prosecution was denied natural justice by Her Worship's failure to consider the whole of the Prosecution's case. The reasons stated in the notice of appeal why leave should be granted were : (i) The appeal raises important questions of law.

(ii) The appeal raises an important question as to the nature of the offence created by s 15 of the OH&S Act.

(iii) The appeal raises an important question concerning the relationship between the elements of the offence and the particulars to the offence.

(iv) The appeal raises the question of the adequacy of the reasons to be given by an Industrial Magistrate.

13 We have set out earlier her Worship's reasoning in concluding that the information here should be dismissed. In light of the questions raised by the appeal, we are satisfied the reasons stated to support leave are clearly on their face sufficient for that purpose. To the extent necessary, therefore, we would grant leave to appeal but, as in Arbor Products, it is unnecessary to finally decide in this case whether leave is required for appeals under s 197A. We prefer to postpone that issue to a case where the question of leave is necessary to decide. However, it is only appropriate, in deference to the detailed arguments advanced in these proceedings, to indicate that the better view would seem to be that leave to appeal is required to bring a s 197A appeal for the reasons stated by the Full Bench in Drake Industrial.

14 The nature of the appeal created by s 197A was considered also in Arbor Products and where the majority concluded (105 IR at p 93 in par [20]) "that an appeal brought under s 197A is an appeal stricto sensu on both fact and law and not by way of a hearing de novo"; Kavanagh J, although in the minority, agreed (105 IR at p 102 in par [60]). In the result, the proper approach on appeal here is to determine whether her Worship fell into appellable error. In other words, the task requires review of her Worship's reasoning in light of the facts as agreed or as found to establish whether the decision that the prosecutor had failed to establish beyond reasonable doubt that the respondent had failed to ensure the health, safety and welfare at work of Mr Jones in operating the circular saw revealed any error by her Workship requiring appellate intervention: see also C I & D Manufacturing (60 IR at pp 153-155).

15 The grounds of appeal were : (i) Her Worship erred in law in dismissing the Information on the ground that particular (c) to the offence had not been proved while not considering whether particulars (a), (b) and (d) had been proved.

(ii) Her Worship erred in law in her interpretation of the offence created by s 15 of the OH&S Act.

(iii) Her Worship erred in law in the application of s 15(1) of the OH&S Act.

(iv) Her Worship's decision that the offence under s 15 of the Act was not proved beyond reasonable doubt was contrary to evidence and to the weight of evidence.

(v) Her Worship erred in failing to provide reasons or adequate reasons.

(vi) Her Worship denied the Prosecution natural justice in not considering the whole of the Prosecution's case.

(vii) Such other grounds that become apparent on reading the transcript of the hearing before her Worship.

16 The commencing point of her Worship's decision was the proposition that s 15(1) in creating the subject offence, notwithstanding the "heavy duty" it cast on an employer, "does not amount to strict liability ... there must be some nexus between a safety incident and the employer's failure to meet its obligations". Grounds (ii) and (iii) referred to this aspect and they may conveniently be dealt with together. This requires attention to the law as it has developed in the authorities as to the nature and scope of the offence created by the section. In the seminal decision in Carrington Slipways Pty Ltd v Callaghan [1985] 11 IR 467 at p 470, Watson J spoke of the statutory duty on an employer created by s 15(1) as being "to ensure", that is, "of guaranteeing, securing or making certain" the health, safety and welfare at work of all of the employer's employees. As a Full Bench of the former Industrial Commission in Court Session said in Shannon v Comalco Aluminium Ltd [1986] 19 IR 358 at p 359, the section "is a general provision establishing a far reaching obligation upon the employer and imposing a duty in absolute terms". An extensive review of the nature of the liability created by s 15(1) was recently conducted by the Full Bench in Drake Industrial (90 IR at pp 449-453) by reference to the authorities as they had developed. In WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268 at pp 288-289, Hungerford J had occasion to again review this general question and, after citing the main authorities concerned, drew the following propositions : (1) The duty imposed on an employer to ensure the health, safety and welfare at work of employees is absolute. (2) Such duty to ensure is to be construed as meaning to guarantee, secure or make certain. (3) The duty so created is directed at obviating "risks" to safety at the workplace, even absent any actual incident causing injury; that is, where the circumstances create a potential danger to the health and safety of employees at the workplace. (4) The duty cast on an employer is both preventive and remedial in nature and is not necessarily satisfied by carrying out what ought be done by a reasonable or prudent person in the circumstances. (5) It is wrong in considering whether a breach has occurred to reason from the actual incident causing injury as the necessary detriment to safety as such an approach may well lead to a misunderstanding of the real facts on which a charge is based. (6) An incident itself causing injury may well, and probably does, manifest the existence of a detriment to safety and will, no doubt, be some measure of the degree of severity of the detriment. (7) It is necessary to establish both a relevant "failure" on the part of the employer and a causal relationship between the conduct of the employer and the consequent risk to health, safety or welfare of the employees. (8) It is to the essential ingredients of the offence charged which one must attend by assessing the objective facts causing the detriment to safety and the causal connection therewith of the employer. (9) The commission of an offence does not require the demonstration by the prosecutor that particular measures should have been taken to prevent the risk, although there can be no relevant failure by an employer in not taking steps to preclude a risk which was impossible to anticipate. (10) There is no warrant for limiting the detriments to safety contemplated by the statutory duty to those which are reasonably foreseeable. (11) Whilst relevant risks should not be merely speculative or unduly remote, measures which may have been taken to prevent any failure might be relevant to the statutory defence under s 53 that either, firstly, it was not "reasonably practicable" to have complied with the duty or, secondly, that the commission of the offence was due to causes beyond the control of the employer and against the happening of which it was impracticable to make provision. (12) The liability of an employer is to ensure that employees are not exposed to risks to health or safety while at work. The liability thus created according to the criminal standard of beyond a reasonable doubt makes out the offence; it is then for the defendant employer to prove to the civil standard on the probabilities the elements available under the s 53 defence.

17 In the later decision of WorkCover Authority of New South Wales (Inspector Robins) v Labour Co-operative Ltd (No 1) [2001] NSWIRComm 223 at pp 55-58 in par [45], his Honour restated the propositions. We indicate our agreement that those propositions correctly reflect the nature of the liability created by s 15(1) of the Occupational Health and Safety Act and provide a convenient formulation of the position as it has been decided in the cases over the years. Specifically as to the present grounds (ii) and (iii), the relevant propositions above-stated are those in pars (1), (2), (4), (5), (7), (8), (9) and (10).

18 The fundamental approach of her Worship in denying the respondent's liability seemed to proceed on the premise that s 15(1) did not amount to strict liability because there had to be some nexus between a safety incident and the employer's failure to meet its obligations. Mr Agius supported that approach as being correct in terms of the obligation cast by s 15(1) in that, as senior counsel said, "the prosecutor failed to prove to the requisite standard that the employee's injury was caused by any failure on the part of Coffey [the respondent]". In so submitting, we are satisfied Mr Agius followed the same error made by her Worship, that is, that the section did not involve strict liability because there had to be some relevant connection between the incident causing injury to Mr Jones and the respondent's failure to ensure his safety. However, as was made plain by the Full Court in C I & D Manufacturing (60 IR at pp 158-159) : The general duties created by the OHS Act, such as in ss 15 and 16, are clearly directed, we think, at obviating "risks" to safety at the workplace; it would therefore be wrong in considering whether an alleged breach of those general duties had been made out in any particular case to reason from the actual occurrence of an accident, even though causing death or injury, as the necessary detriment to safety and as to which a causal connection was to be shown. The accident itself may well, and probably does, manifest the existence of a detriment to safety and will, no doubt, be some measure of the degree of severity of the detriment; but, it seems to us, it is to the essential ingredients of the offence charged which one must attend by assessing the objective facts causing the detriment to safety and the causal connection therewith of the employer.

19 Proposition (5) stated above dealt directly with this aspect. In the present case, as the charge made plain, the alleged risk to safety was in the operation by Mr Jones of the circular saw and the causal connection of the respondent with that risk was contained in the particulars of its alleged failures, namely, the absence of any or any adequate risk assessment, the lack of a safe system of work for the operation and use of the circular saw and without training, relevant information and adequate supervision in the operation of the circular saw. To the extent her Worship, like Mr Agius, approached the matter in a contrary way, by reasoning that the offence had not been established on the premise that s 15(1) did not amount to strict liability, she was wrong; strict liability, or perhaps absolute liability as the section has been said to involve, is satisfied by the nature of the section in its terms being to "ensure" safety and not, as her Worship seemed to think, by the need for a causal relationship between the conduct of the employer and the consequent risk to safety. In other words, the necessity to establish such a causal relationship is to say no more than that it must be shown it was the employer's failure, and not that of someone or something else, to comply with the absolute duty so created. The error made here, it seems to us, arose by incorrectly reasoning from the incident and injury to Mr Jones rather than, as should have occurred, by attending to the essential ingredients of the offence as set out in the particulars as causing the alleged detriments to safety. It is then, and only then, that the employer's acts or omissions connecting the employer with the detriments to safety need be considered. That her Worship failed to so approach this matter was an error of law and contrary to the settled nature of the offence. Grounds (ii) and (iii) of the appeal have, therefore, been made out.

20 Ground (i) of the appeal complained her Worship erred by finding that particular (c) of the offence had not been proven, and thereupon dismissed the charge, whilst at the same time particulars (a) and (b) were not considered. Ground (vi) as to an alleged denial of natural justice to the appellant by her Worship in not considering the whole of the prosecutor's case related, as we understood it, to the same issue raised in ground (i) and we propose to so regard it. In any event, we comment that the description of "natural justice" would seem inapt in describing her Worship's alleged failure to consider particulars (a) and (b) because there was no question that the appellant at first instance had every opportunity to present his case and was heard. The real vice claimed was that those particulars had not been considered by her Worship and ground (i) adequately comprehends this within its scope.

21 Mr Agius defended her Worship's approach based on the finding that there could have been little or no expectation on the part of the respondent that Mr Jones would have been required to use a circular saw so that, as we understood senior counsel's argument, her Worship impliedly found there was no causal nexus linking the respondent to the failures alleged in particulars (a) and (b) - they could not, therefore, be relevant failures by the respondent; additionally, that part of particular (c) concerned with adequate training and relevant information in the operation of the circular saw was to the same effect. However, and as Ms McDonald pointed out, her Worship found also that in performing the grouting work in some circumstances the use of a circular saw was involved. This is to be seen too in the context, as her Worship observed, that Crane Enfield Metals on the present occasion requested the respondent to provide labour for the grouting work and where the request was made informally by a telephone call; further, on arrival at the Penrith factory of Crane Enfield Metals, Mr Jones was shown the circular saw on which he was to perform operations.

22 The very basis upon which her Worship decided this matter was the respondent's protestation in evidence that there could have been little or no expectation on its part that the circular saw was to be used. In our view, that evidence in no way enabled her Worship to disregard consideration of particulars (a), (b) and the relevant part of (c) so as to restrict consideration to the issue of "supervision". Any view of the evidence, we are satisfied, necessarily raised for consideration the unmentioned aspects of the particulars concerned. Indeed, even if it were the case that there was only "little expectation" of the circular saw being used by Mr Jones then, we would have thought, the allegations contained in the particulars not referred to would arise for primary consideration. The error here by her Worship in not considering the subject particulars was an error of law. Again, in our view, it arose for the same reasons discussed in relation to grounds (ii) and (iii), principally the misunderstanding by her Worship of the nature of the offence s 15(1) created. Ground (i) of the appeal has been established.

23 Ground (v) was to the effect that her Worship failed to provide reasons or adequate reasons for the decision given and, therefore, erred. The Court of Appeal in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 considered the duty of a judicial officer to provide sufficient reasons for a decision reached at first instance. After outlining the historical development of the common law as to the duty of judicial officers to record reasons for their decisions, Kirby P commented (10 NSWLR at pp 259-260) : ... The absence of proper reasons constitutes, as has been pointed out, an error or law. It authorises the intervention of this Court. ... If a judge of the Compensation Court, by indicating even in brief terms, his processes of reasoning to a conclusion on disputed facts, this Court may not interfere. But where he does not do so, or where the inferences from his given reasons establish or suggest a misapplication of the statute, the Court may intervene for then an error of law is shown. ...

This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge's conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues. Only if this is done can this Court discharge its functions, if an appeal is brought to it. Where nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged. Justice has not been done and it has not been seen to be done. Where it is necessary, for default of reasons, to resort to inferences which point to a reason for the decision of highly dubious relevance to the statute being applied, the result is that an error of law has occurred which this Court can and should correct. ...

This Court has expressly recognised the appropriateness of abbreviated oral judgments in busy trial courts whilst, at the same time, emphasising the requirement that, as a minimum, reasons be adequate for the exercise of a facility of appeal ...

24 As to the obligation to give reasons for findings of fact, Mahoney JA commented (10 NSWLR at p 269) : ... First, the reasons given must be sufficient, where there is a right of appeal, to allow that right to be exercised. Secondly, the giving of reasons is not limited to cases where there is a right of appeal: there are reasons in the nature of the judicial process which may require that reasons be given as an incident of the decision in question. And, thirdly, the giving of reasons is a normal but not a universal incident of the judicial process: there are some cases, or kinds of cases, where they need not be given. In so far as it may be relevant for me to do so, I would agree with each of these and see them as applicable in determining what reasoning of fact a judge is under pain of error of law, required to set forth in his judgment.

25 To a similar effect, McHugh JA, after holding (10 NSWLR at p 279) that "the giving of reasons is correctly perceived as 'a necessary incident of the judicial process' because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law", observed (10 NSWLR at p 280) : ... it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given ...

The content of the duty of a judge to give reasons is not dissimilar from the duty of a party to give particulars of a claim or defence. ...

... I agree with the statement of Mahoney JA in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd ([1983] 3 NSWLR 378 at p 386) that the extent of the duty to give reasons is related "to the function to be served by the giving of reasons". Thus more elaborate reasons are required where legislation gives a right of appeal against a decision than where no appeal lies. In the first class of case, unless the basis of the decision is properly articulated, the losing party may be effectively deprived of his right of appeal.

26 In referring to the inadequacy of the reasons given here by her Worship, Ms McDonald submitted that "the reasons given by her Worship were inadequate as it does not allow the parties to understand the basis of her decision". Mr Agius supported the sufficiency of her Worship's reasons on the basis that "in a busy first instance Court, judicial officers cannot be expected to provide judgments which are perfectly expressed. ... Here, the learned Magistrate made an essential finding of fact. There is no ambiguity concerning this finding of fact and it is sufficient to dispose of the prosecution's case".

27 It is true her Worship concluded that "the evidence is not capable of satisfying the Court beyond reasonable doubt that the offence charged against the Defendant is proved". However, we are unable to discern the basis for that finding, particularly having in mind the complete absence from her Worship's reasoning of any reference to particulars (a), (b) and the relevant part of (c), other than the perceived unreasonableness in expecting the respondent to provide or ensure the supervision of Mr Jones in his operation of the circular saw. If that was a reference, as Mr Agius suggested it was, to the statutory defence contained in s 53 of the Occupational Health and Safety Act, and as to which we will later deal, then it was far from apparent. In light of the earlier conclusions we have reached as to the grounds of appeal being established in relation to the nature and scope of s 15(1) and the role of the necessary causal nexus, the failure by her Worship to articulate to any degree the evidence upon which the ultimate conclusion was based was, in our view, an appellable error of law requiring correction. Ground (v) has been established.

28 The remaining ground of appeal in (iv), that the decision the offence charged was not proven beyond reasonable doubt was contrary to the evidence and to the weight of evidence, if made out, provides the means by which the earlier found errors of law may appropriately be corrected. In doing so, and consistent with the approach stated by the majority of the Full Bench in Arbor Products (105 IR at pp 92-93 in pars [19]-[21]), we adopt as appropriate the principles set out by the Full Court in C I & D Manufacturing (60 IR at pp 153-154). For completeness, and as followed in C I & D Manufacturing, this approach follows the consistent line of authority in relation to appeals in the strict sense as referred to by the former Industrial Commission in Court Session in State Rail Authority of New South Wales v Dawson [1990] 37 IR 110 at pp 117-118 by reference to the ordinary approach at law, as follows : The nature of an appeal in terms of the catalogue of "appeals" available under various statutory provisions was considered by Kirby P in Clarke & Walker Pty Limited v Secretary of the Department of Industrial Relations (1985) 3 NSWLR 685 at 690-692; 14 IR 269 at 273-274, in which his Honour referred to authority for the proposition that an "appeal" was a term loosely employed to denote a number of different types of judicial processes. In referring to one of such types, an appeal from a judge in the strict sense was dealt with, and, in reliance on the decision of the High Court in The Victorian Stevedoring and General Contracting Co Pty Limited and Meakes v Dignan (1931) 46 CLR 73 at 107, Kirby P said that in such an appeal "if the judge has fallen into error of law, or has made a finding of fact which is clearly wrong, the appellate court will substitute its own judgment. Only such judgment can be given as ought to have been given at the original hearing." In our view, an appeal under s 120(1) of the Industrial Arbitration Act is of that nature. In Radford v Sagaris [1929] AR (NSW) 72 at 75-76, Street J, as he then was, in dealing with an appeal such as the present, applied the duty of the appellate tribunal as that laid down by the High Court in The London Bank of Australia Limited v Kendall (1920) 28 CLR 401 at 407, as follows:

"But where the law says that the Court, and not a jury is to determine the facts, and also says that an appellate Court can be asked to reconsider them, and therefore should reconsider them, it is the duty of the appellate tribunal (and it is the statutory right of the litigant who invokes it to require of it the performance of that duty) to determine for itself the true effect of the evidence so far as the circumstances enable it to deal with the evidence as it appeared in the Court of first instance." We consider the position so stated to be applicable to appeals under s 197A and we will approach the present appeal in that way.

29 The essential issue raised by ground (iv) was whether her Worship committed appellable error in finding that the respondent had not breached s 15(1) of the Occupational Health and Safety Act. Having in mind our earlier conclusions that in the respects stated, particularly as to the nature of the offence created by the section and failing to give reasons or any adequate reasons for the decision, her Worship had committed errors of law, it is necessary for us to determine for ourselves the true effect of the evidence and to substitute, if appropriate, our own judgment: see State Rail Authority v Dawson (37 IR at p 118) and The London Bank of Australia Ltd v Kendall (1920) 28 CLR 401 at p 407. Of course, in doing so, we have in mind there should be no interference with conclusions on facts unless they were not reasonably open on the evidence or were clearly wrong: see C I & D Manufacturing (60 IR at p 154). However, in dismissing the charge her Worship did so, as she said, where "the evidence is not capable" of making it out to the requisite criminal standard. If that view of the evidence be wrong, as we think it was, then her Worship has made an appellable error of law. Again having in mind our earlier findings, and in the absence of sufficient reasons being given, we consider at the least that her Worship's view of the evidence must have been thereby tainted and so open to intervention on appeal.

30 At the outset, we are able to say, having reviewed the evidence generally, that we reject Mr Agius' argument that her Worship made no error of law nor could it be suggested there was any finding of fact relied upon by her Worship which was not open to be made. Specifically, we reject senior counsel's submission that the work to be performed by Mr Jones raised no expectation the circular saw was to be used; senior counsel's alternative submission that the finding by her Worship that there could have been little or no expectation Mr Jones would be required to use the circular saw as being sufficient to found the statutory defence in s 53 is similarly rejected. We predicate acceptance of Ms McDonald's submission that a review of the evidence established grouting work included "that formwork was to be constructed" and "necessarily involved employees having to cut timber to construct the formwork"; Mr Jones was shown the circular saw he was to use for that purpose but where he was not trained or shown how to operate the machine. We turn, then, to a review of the evidence.

31 The evidence about which there was no issue may be shortly stated as follows -

· The respondent was an employer. · The respondent performed general engineering and maintenance work and this extended to the hire of the labour of its employees to other employers as clients. · Crane Enfield Metals was a client of the respondent and had hired labour from the respondent on a regular basis over a period of about 20 years.

· The arrangement between the respondent and Crane Enfield Metals for that purpose was of an informal nature and labour was supplied following a telephone request being made. · Mr Jones was an employee of the respondent. · The respondent was asked to supply labour to Crane Enfield Metals at its factory premises at Penrith on the instant occasion and Mr Jones was sent for that purpose as a trades assistant. · On 7 January 1998 at the premises of Crane Enfield Metals, Mr Jones was performing grouting work for the installation of a machine and was using a circular saw to cut a piece of timber lengthwise; his left hand was drawn into the rotating blade of the circular saw and he sustained an injury to his left index finger. · The appellant was a duly appointed inspector of the WorkCover Authority and authorised to prosecute the respondent for a breach of the Occupational Health and Safety Act. 32 Her Worship accepted the above unchallenged facts which, it appears, were contained in a "statement of facts" made available to her Worship but not formally admitted into evidence - nothing, however, turns on this as they were supplemented by oral evidence given at the hearing. In any case, her Worship referred to the evidence given by the respondent's managing director, Dennis Michael Coffey, by the injured worker Mr Jones, and by Kendall Norman Palazzi who was a project engineer employed by Crane Enfield Metals; further evidence was given by other employees of either the respondent or of Crane Enfield Metals but that evidence was not dealt with by her Worship. The facts accepted by her Worship, in addition to the unchallenged facts, were -

· Mr Coffey's evidence that there could have been little or no expectation on the part of the respondent that Mr Jones would have been required to use a circular saw in doing the grouting work. · In some circumstances, grouting could entail the use of a circular saw. · While using the circular saw at the time he sustained injury, Mr Jones was working alone. · Mr Jones was not supervised by any employee of the respondent and there was no direct or consistent supervision by Crane Enfield Metals of his work. · Mr Jones had received no adequate training nor relevant information in the operation and use of the chain saw concerned. From the facts so stated, her Worship found, in the circumstance where Mr Jones was required to do the grouting work, "that it would be unrealistic to expect Coffey Engineering to provide or ensure supervision of Mr Jones in his operation of the circular saw".

33 Central to a consideration of the relevant evidence relating to ground (iv) is whether such evidence reasonably led to the finding made that it was unrealistic to expect the respondent to provide supervision of Mr Jones while he operated the circular saw. We have to say, following our review of the whole of the evidence, that that finding by her Worship was perverse and cannot be permitted to stand. In any event, for reasons which we will later develop, the finding so made was not a sufficient answer to the charge laid, as it was particularised, and as would support the dismissal of the charge. Not unimportantly, however, her Worship's finding seems clearly to have been based, as she said, on the evidence of Mr Coffey to the effect that "he received a phone call from Crane Enfield Metals asking for labour staff to do grouting - an ostensibly straightforward, easy job, for which no particular induction, training, or formal instruction was considered necessary ... it was a simple, mundane job that a trades assistant could be expected to do". Notwithstanding that evidence so relied upon, the oral evidence of Mr Coffey disclosed that in fact he did not take the telephone call but rather it was, as he admitted, "Tony Rakich, one of our employees, about the duties and obviously from a lot of hearsay over two years that my answer there has changed". In that state of Mr Coffey's evidence, we think it is simply not open for her Worship to have accepted Mr Coffey's earlier version to enable the key finding which led to the dismissal of the charge. Indeed, the view we have formed of this important evidence is only confirmed by further oral evidence given by Mr Coffey when he admitted he had told the appellant during an interview shortly after the incident occurred that the respondent was not aware of the duties Mr Jones was to perform at Crane Enfield Metals; Mr Coffey's earlier evidence, no doubt on which her Worship relied, was that the respondent was made aware of the duties to be performed by Mr Jones at Crane Enfield Metals, namely, "to do grouting" - that evidence was patently not credible and certainly Mr Coffey was not the person who received the request from Crane Enfield Metals for the services of Mr Jones. We reject his earlier evidence on which her Worship relied.

34 The remaining evidence in the proceedings as to the duties to be performed by Mr Jones was from Mr Jones himself, Mr Palazzi and Anthony David Rakich, the then general manager of the respondent. Relevant extracts of that evidence follow : Mr Jones: Q. When you were told by, I think Mr Wells (the respondent's foreman), that you were to go and work over Crane Enfield, did he tell you what you'd be doing over there? A. I don't think so, off memory I don't think so. I think I was just going out there to do something and find out when I got out there, that's off memory.

Q. So to the best of your knowledge who did you meet at Crane Enfield who told you what to do? A. Ken Palazzi.

Q. And what did Mr Palazzi tell you? A. He took me around, showed me what had to be done, where the gear was that I'd need for it.

Q. Specifically did Mr Palazzi show you the circular saw? A. He showed, yeah, showed me where the saw was, yeah.

Q. Would you tell her Worship what instructions Mr Palazzi gave you in relation to the operation of the circular saw? A. I think it was make sure the guard's down or something like that. I don't know.

Q. Did he give you any instruction that you were to use a piece of equipment called a push stick? A. No.

Q. Did he turn the machine on and show you how to use it? A. No I don't think so.

Q. Just can I take it that Mr Palazzi took you to the machine, told you this was a circular saw and without turning it on did not give you any demonstration as to how the machine functioned? A. Yeah.

Q. Had you used a circular saw like that before? A. I'd used like portable circular saws, ... but I hadn't used one like that.

Q. So when you say you hadn't used one like that, you hadn't used a circular saw which was fixed to a table and which had a moveable guard and a riving knife? A. No.

Q. At the time of your accident was anybody from Coffey Engineering Pty Limited supervising you? A. No.

Q. Prior to your accident had anybody from Coffey Engineering Pty Limited provided you with any training or provided you with any information as to how to safely use the circular saw? A. No.

Q. Had anyone from Coffeys ever told you that you were to use a push stick whilst you were conducting the ripping operation? A. Someone let me know afterwards.

Q. Did anyone let you know before? A. No.

Q. Were you presented with any work method statement or any information from Coffeys as the system of work you were to employ whilst using the circular saw? A. No.

Q. Now when you arrived at the Crane premises at the commencement of this two week period running up to your accident you met Ken Palazzi didn't you? A. Yeah.

Q. And he explained it to you that the work that you were to do was grouting? A. Yes.

Q. He explained to you that the grouting was the placing of I think a cement mix under the legs of machines that were being positioned in the refurbished factory, is that so? A. Yes.

Q. And that you would use the cement mix or rather you would place the cement mix in position by using your hands and compressing it in under the legs? A. No.

Q. Did he describe to you a different method of putting grouting in position? A. Yes.

Q. How did he say you put grouting in position? A. Put a frame and seal it, put a frame around, put a frame around the leg.

Q. Yes? A. Seal the frame and then pour the grout into that until it reaches its height.

Q. The frame was I think we've heard the expression forming up or using form work? A. Yeah, form work yeah.

Q. That's in effect what it was? A. Yeah.

Q. It's creating a little box to put the cement in? A. Yes.

Q. You said that he took you around, and one of the things he showed you was a saw? A. Yes.

Q. This was the saw amongst other things that he's shown in those seven photos which are exhibit 1? A. Yes.

Q. There was also I think there a hand saw for you to use in respect of your work? A. I think so.

Q. But when you went over to the premises this is what I want to be clear on, when you went from Coffey to Crane your understanding was you were simply going to be doing grouting, in other words the positioning of concreting under these legs, wasn't that the case? A. When I left Coffeys to go to Cranes.

Q. Yes? A. I was - as I said I don't know if I was told I was going over there for grouting or I was just told that I was going over there for work. Mr Palazzi: Q. ... Did you have a conversation with somebody at Coffeys? A. Yes, I did, I had a conversation, I think it was with Tony Rakich.

Q. And what was the terms of that conversation? A. I was looking for somebody to give one of the other workers a hand. The job that he was doing had turned out to be too much for one person so I spoke to Tony Rakich and asked him for a person to assist the other person, which was actually Wayne Cox, and the task would be basically grouting under machinery which included cutting the formwork, setting the formwork in place, mixing the grout and then pouring the grout into the formed area.

Q. And that's what you said to Mr Rakich, I think? A. Yes, Yes, it was.

Q. And pursuant to that conversation Mr Rakich sent Mr Jones to Crane Enfield? A. Yes. Yes, that's correct.

Q. So when Mr Jones arrived at Crane Enfield did you show him what he was meant to be doing? A. Yes, I did. I personally took him around, showed him the general scope of what I was asking him to do, showed him the gear that he had to do it with, including the bits of timber, the cement mixer, the carpentry workshop, the grout, etcetera.

Q. Okay. Did you provide him with any specific information regarding the safe use of the circular saw? A. I didn't, but I did ask him had he used that sort of equipment before, as in everything in the shop, to do carpentry type work and he answered to that that he had.

Q. Did you instruct or advise Mr Jones into the requirement of using a push stick whilst using that circular saw? A. No, I didn't instruct him specifically. I had made the assumption that since he was out here to do that task that he was capable of doing that and when he said to me that he had used saws like that before then I assumed that he could do that.

Q. Was there any system of work that Crane Enfield had in relation to the operation of the circular saw at its premises? A. Not specifically, no.

Q. Did Mr Rakich inquire of you whether there was a system of work in relation to the use of that circular saw? A. No, he didn't.

Q. Did Mr Rakich advise you or ask you whether or not a risk assessment had been carried out in relation to the work performed on that circular saw? A. No.

Q. Did Mr Rakich ask you to ensure that Mr Jones was properly trained and provided with information regarding the safe use of the circular saw? A. No.

Q. Was there anybody supervising Mr Jones while he was using the circular saw at the Crane Enfield premises on 7 January 1998? A. No, there wasn't. He was actually reporting straight to me. I was in contact with him two to three times per day but I wasn't actually watching what he was doing.

Q. Did you advise Mr Jones that the grouting work was to be carried out by constructing the frame, cutting the wood on the circular saw to construct the frame and then pour the grout in. Was that what you instructed him? A. I didn't specify how he was going to cut the timber but yes, I specified that the frame had to get made, sealed to the ground, and the grout had to get put in. Mr Rakich: Q. At some time towards the end of 1997 did you receive a telephone call from Mr Palazzi in relation to a further person to be provided to Crane? A. Yeah, I think it was - beginning of '98 though.

Q. It might have been the beginning of 1998? A. Mm he needed an extra guy to help Wayne Cox finish off the grouting.

Q. Just let me stop you there if I might. Are you able to tell us as best you can, to the effect of, the conversation that you had with Mr Palazzi? A. Mm mm, right to the best of my recollection he rang I think it was either a Wednesday or a Tuesday afternoon, asking for a TA.

Q. Let's do it so that it's in a form that assists us all as best we can. What did you call each other? Was it Tony and Ken? A. Yeah, yeah.

Q. Did he say Tony it's Ken here and try and do it in the first person like you were having a conversation here and now, do you understand? A. Okay, yeah. He's rung me and said Tony I'm looking for an extra hand - a trade's assistant to assist Wayne Cox with the grouting and I said well the only bloke we have available is Andrew Jones who's I think I mentioned to him that he was a trainee engineer and he was the only trade's assistant type person that we had left and that was basically it. He said he'll do and that was it.

Q. When you say that was basically it that so often suggests that there might have been something else said, was there anything else said at all? A. Not that I'm aware of, no, nothing regarding the job anyway.

Q. Was there any discussion, any mention to you by Mr Palazzi about formwork? A. I don't recall it, no.

Q. Having spoken to - had that part of that conversation, did you make arrangements yourself for Mr Jones to go to the premises or did you cause somebody else to make arrangements? A. I contacted the shop foreman.

Q. Who was that? A. Ross Wells.

Q. So far as you're aware did Mr Wells then make arrangements for Mr Jones to go out to Crane? A. Correct. (Mr Wells was not called by the respondent to give evidence.)

35 The nature and extent of the obligations of labour hire companies, as is the respondent here, to ensure the health, safety and welfare of their employees sent to work at a client's premises is now well settled: see WorkCover Authority of New South Wales (Inspector Ankucic) v Drake Personnel Ltd, t/as Drake Industrial (No 1) (1997) 89 IR 374 at p 382; WorkCover Authority of New South Wales (Inspector Ankucic) v Drake Personnel Ltd, t/as Drake Industrial (No 2) (1997) 89 IR 383; WorkCover Authority of New South Wales (Inspector Dubois) v Industry Staffing Services Pty Ltd, t/as Action Workforce (1999) 89 IR 430 at 433; Drake Industrial (90 IR at pp 455-456); WorkCover Authority of New South Wales (Inspector May) v Swift Placements Pty Ltd (No 2) (1999) 96 IR 24 at pp 30-31; and Labour Co-operative Ltd (No 1) (at pp 58-59 in pars [47]-[48]). The arguments presented in this case and the approach adopted by her Worship in the decision make it timely, we think, to restate the views expressed by Wright J, President and Walton J, Vice-President, with whom Peterson J agreed, in Drake Industrial (90 IR at pp 455-456), as follows : In any event, we are not persuaded that the appellant would be relieved from liability under the OH&S Act, even if the existence of an implied term in the form alleged had been established. This question raises the particular circumstances of an employer who conducts a labour hire business by engaging employees for the purpose of supplying those employees to do work for other employers. The relationship created between a labour hire company and its employees is distinguishable on a number of grounds from that existing between traditional employers and their employees. A labour hire agency does not employ people to work for itself but to work for a client, it does not directly on a day to day basis supervise the tasks carried out by the employee and it is usually not in control of the workplace where the work is done. However, these circumstances do not obviate, or diminish, the obligation of the employer under s15(1) of the OH&S Act to "ensure the health, safety and welfare at work of all the employer's employees." Indeed, in our view, an employer who sends its employees into another workplace over which they exercise limited control is, for that reason, under a particular positive obligation to ensure that those premises, or the work done, do not present a threat to the health, safety or welfare of those employees. Certainly, there is no basis to consider that such an employer has a lesser liability or obligation under s15(1).

The obligations of a labour hire company under the OH&S Act have been considered on a number of previous occasions by this Commission and its predecessors. The judgment of Hungerford J in WorkCover Authority of New South Wales (Inspector Ankucic) v Drake Personnel Ltd, t/as Drake Industrial (No 1) (1997) 89 IR 374 concerned a prior prosecution of the appellant. That prosecution arose from an incident in which an employee of the appellant, Mr Douglas, sustained an injury whilst operating a woodworking machine at the premises of another company, Warman International Ltd. The appellant pleaded guilty in that case and was fined a total of $25,000. Considering the question of penalty, his Honour commented (at 382): "The failure here to ensure the safety of Mr Douglas arose in a situation where he was directed by his employer, the defendant, to perform work for a third party, Warman, at that third party's premises. In such a situation, my view is that an employer has a special responsibility to ensure the health, safety and welfare of its employees at the other workplace for no reason other than that that workplace is removed from the employer's direct management and control and would usually be at a location foreign, or at least unfamiliar, to the employees concerned. The evidence established that the defendant did not satisfactorily attend to this aspect and it was not until Mr Davey was engaged that specially designed safety policies and procedures were implemented. But that was in July 1997, at least two years after the present offences were committed; Mr Douglas thereby suffered injury resulting in absence from employment for a period of at least two months and with a permanent deficit in the use of his right hand. It is no answer, in my view, in reduction of penalty otherwise considered appropriate for the defendant to plead reliance on Warman as the client to take appropriate steps to ensure safety in the workplace for all persons engaged at its premises. True it may be that Warman itself may have offended against the Occupational Health and Safety Act , but that does not, it seems to me, lessen the seriousness of the offences committed here by the defendant as the employer. It is that feature of this case which gives to the assessment of penalty such a degree of importance as will encourage employers in a business similar to that of the defendant to implement appropriate steps to ensure the safety of their employees whose labour is hired to third parties and at the same time to deter employers for failing to take such steps. "

See also WorkCover Authority of New South Wales (Inspector Dubois) v Industry Staffing Services Pty Ltd, t/as Action Workforce (1999) 89 IR 430.

The observations of Hungerford J set out above were made in the context of determining the appropriate penalty to be imposed following a plea of guilty. However, we consider that they are equally applicable when considering the liability of a labour hire company under the OH&S Act. A labour hire company cannot escape liability merely because the client to whom an employee is hired out is also under a duty to ensure that persons working at their workplace are not exposed to risks to their health and safety or because of some alleged implied obligation to inform the labour hire company of the work to be performed. In our view, a labour hire company is required by the OH&S Act to take positive steps to ensure that the premises to which its employees are sent to work do not present risks to health and safety. This obligation would, in appropriate circumstances, require it to ensure that its employees are not instructed to, and do not, carry out work in a manner which is unsafe.

In the present case, it seems to us that this would require, at the very least, that the appellant give an express instruction to the client and its employee that it be notified before the employee is instructed to work on a different machine.

36 In light of the way in which the obligations of the respondent as a labour hire company are to be viewed in satisfying its statutory duty to ensure Mr Jones' safety in the hire of his services to Crane Enfield Metals, we are satisfied beyond reasonable doubt that the evidence has established the subject charge. Specifically, we are satisfied that the only proper conclusions open from the evidence were that the respondent committed the contraventions alleged in particulars (a), (b) and (c), that is, it failed to carry out any or any adequate assessment into the hazards associated with work to be performed on the circular saw, it failed to ensure a safe system of work in the operation and use of the circular saw and it failed to ensure that its employee had been adequately trained, provided with relative information and adequately supervised so as to ensure safety while operating the circular saw. The conclusion of her Worship to the contrary finds no support in the evidence and must, therefore, be set aside. Ground (iv) has been established.

37 It only remains to deal with the submission by Mr Agius relying on the statutory defence contained in s 53 of the Occupational Health and Safety Act. That defence, as the propositions above-stated in pars (11) and (12) from Keelty v Police Service (No 2) made clear, is available in two situations: first, it was not reasonably practicable in the circumstances to have complied with the duty; or, second, the commission of the offence was due to causes over which the employer had no control and against the happening of which it was impracticable to make provision. We are of the view that the respondent failed to make out the defence on either ground and our reasons for so concluding may be shortly stated. The essential contention put by Mr Agius was that the concluded view of her Worship that "there could have been little or no expectation on the part of the Defendant company that Mr Jones would have been required to use a circular saw in doing a grouting job" was sufficient to found the statutory defence; as senior counsel said, her Worship was correct in concluding "that it would be unrealistic to expect Coffey Engineering to provide or ensure supervision of Mr Jones in his operation of the circular saw" so that it could not be said in any way the respondent should have envisaged the danger which arose when Mr Jones used the circular saw. We disagree. We have earlier found against such a submission on the evidence and it is clear also that the respondent took no steps to further enquire of Crane Enfield Metals what work Mr Jones would be doing and neither did it have any system in place other than to make Mr Jones' services available to Crane Enfield Metals and to permit that company itself to allocate and supervise the work concerned. The nature of the obligation of a labour hire company as stated in Drake Industrial is clear. Although such a company, like the respondent, may abdicate supervision of its employee in the performance of the work it cannot abdicate its responsibility under s 15(1) of the Occupational Health and Safety Act to ensure that employee's health, safety and welfare at the premises of the client. We are satisfied that the alleged risks in the operation of the circular saw were reasonably foreseeable and of such a nature as to make it practicable for the respondent to take precautions against; that it did not do so means, in our view, that the respondent has not made out a s 53 defence.

38 Finally and for completeness on the s 53 defence available to a defendant in resisting proceedings for a breach of the Occupational Health and Safety Act, we would wish to refer to the recent decision of Walton J, Vice-President in WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd [2001] NSWIRComm 278. In that case, his Honour considered (at pp 42-47 in pars [80]-[88]) in depth the proper approach to apply in terms of principle; we have, with respect, found his Honour's observations compelling and it is relevant to cite his Honour's concluding remarks (at p 47 in par [88]) : As has been discussed, the assessment of the reasonable practicability of those steps requires a balancing of the quantum of the risks with the sacrifice (in money, time and trouble) in adopting the measures necessary to avert the risk. In my view, where there is a known risk which entails the potential for serious injury to persons in the workplace, the defendant will generally have to demonstrate that the costs, difficulty or trouble occasioned by the measures significantly outweigh the risk. This must be done by reference to the charge as brought by the prosecutor. It will be apparent in the instant case that the factors referred to by his Honour were not given any attention at all by the respondent in mounting its defence. Therefore, it cannot be said that the measures which were available to the respondent to obviate the risks to safety here were outweighed to any degree by the sacrifice it faced in taking steps to avert the risks.

39 The subject charge has been made out. Her Worship erred in dismissing it. The appeal must be upheld. Pursuant to s 197A(7)(b) of the Industrial Relations Act we make orders as follows - 1. Leave to appeal is granted. 2. The appeal is upheld. 3. The subject decision given by her Worship on 10 October 2000 is set aside. 4. The offence charged against the respondent is proven. 5. These proceedings are adjourned to a date to be fixed to deal with the issue of sentence. _______________________

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