Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338
John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42
(1987) 163 CLR 508
Kirk Group Holdings Pty Limited v WorkCover Authority of New South Wales [2006] NSWCA 172
(2006) 66 NSWLR 151
Kirk v Industrial Commission
Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1
Source
Original judgment source is linked above.
Catchwords
Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338
John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42(1987) 163 CLR 508
Kirk Group Holdings Pty Limited v WorkCover Authority of New South Wales [2006] NSWCA 172(2006) 66 NSWLR 151
Kirk v Industrial CommissionKirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1(2010) 239 CLR 531
Knaggs v Director of Public Prosecutions (NSW) and Another [2007] NSWCA 83(2000) 102 IR 84
Morrison v Chevalley [2010] NSWIRComm 116(2010) 198 IR 30
Newcastle Wallsend Coal Company Pty Ltd v WorkCover Authority (NSW) (Inspector McMartin) [2006] NSWIRComm 339(2007) 159 IR 121
R v Taufahema [2007] HCA 11(2007) 228 CLR 232
Rail Infrastructure Corporation v Page [2008] NSWIRComm 169(2008) 179 IR 398
Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31(2001) 103 IR 143
Shannon v Comalco Aluminium Ltd (1986) 19 IR 358
St Hilliers Contracting Pty Ltd v WorkCover Authority (NSW) [2007] NSWIRComm 39
Judgment (16 paragraphs)
[1]
v Industrial Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531
Knaggs v Director of Public Prosecutions (NSW) and Another [2007] NSWCA 83; (2007) 170 A Crim R 366
Lorenzo and Santos v Inspector Peter Hayes [2011] NSWIRComm 54
Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) [2000] NSWIRComm 239; (2000) 102 IR 84
Morrison v Chevalley [2010] NSWIRComm 116; (2010) 198 IR 30
Newcastle Wallsend Coal Company Pty Ltd v WorkCover Authority (NSW) (Inspector McMartin) [2006] NSWIRComm 339; (2007) 159 IR 121
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
Rail Infrastructure Corporation v Page [2008] NSWIRComm 169; (2008) 179 IR 398
Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31; (2001) 103 IR 143
Shannon v Comalco Aluminium Ltd (1986) 19 IR 358
St Hilliers Contracting Pty Ltd v WorkCover Authority (NSW) [2007] NSWIRComm 39; (2007) 162 IR 241
State of New South Wales (Department of Education and Training and Department of Juvenile Justice) v Cahill (No 2) [2011] NSWIRComm 33
Trade Practices Commission v Total Australia Limited (1976) 24 FLR 413
Western Freight Management Pty Ltd v Inspector Patton [2011] NSWIRComm 68
WorkCover Authority (NSW) (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd [2001] NSWIRComm 278; (2001) 110 IR 182
Texts Cited: The Macquarie Dictionary (5th Edn)
Category: Principal judgment
Parties: Masterton Homes Pty Limited (Appellant)
WorkCover Authority of New South Wales (Respondent)
Representation: Mr D Campbell SC with Mr KG Bennett of counsel (Appellant)
Mr J Agius SC with Mr R Reitano of counsel (Respondent)
Masterton Homes Pty Limited (Appellant)
DLA Piper Australia (Respondent)
File Number(s): IRC 2240 of 2008
Decision under appeal Jurisdiction: 9109
Before: Chief Industrial Magistrate Hart
File Number(s): 120264/06/4
[2]
Judgment OF THE COURT
1This is an application for leave to appeal and appeal from decisions and orders made by Chief Industrial Magistrate Hart on 22 June 2007, 29 October 2007, 28 May 2008 and 12 November 2008.
2The application was amended on 28 January 2011 to incorporate grounds of appeal which rely on issues considered by the High Court in Kirk v Industrial Commission ; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531. The issues primarily concern whether the Court Attendance Notice (CAN) filed against the appellant in the proceedings at first instance for an offence under s 8(2) of the Occupational Health and Safety Act 2000 (OHS Act 2000) was "fatally flawed" and did not invest the Court with jurisdiction because it failed to identify the risk and the measures relied upon by the respondent. Related grounds relied upon by the appellant assert that it was not accorded procedural fairness in the hearing below and that the failure of the Chief Industrial Magistrate (CIM) to require the respondent (the prosecutor below) to provide particulars of the offence alleged in the CAN constituted an error.
3Other grounds set out in the application assert that the CIM erred in law in relation to his findings of guilt and in relation to whether his Honour failed to give proper reasons for not acting on the expert evidence adduced by the appellant.
[3]
Background
4The appellant builds residential homes in Sydney, Newcastle and the Illawarra district. It was under contract to construct a two-storey residential dwelling on a site at Merewether. By late October 2004, the walls and framework of the lower level of the building were substantially complete and the wall frames from the upper level were ready for installation and delivery. On 20 October 2004, the day of the offence, a steel beam spanned the front opening of the garage at the site. It was some 5.5 metres in length and weighed 225.5 kilogrammes. It rested on two brick piers about 2 metres in height, separated by a distance of 4.8 metres, measured from the inside of each pier. The day before, the appellant had entered into an oral contract with Structural Cranes Pty Ltd to unload the wall frames for the upper level of the building by means of a Franna crane, utilising a crane driver and a dogman to facilitate the unloading from the back of a truck, and place the frames on the upper level of the building ready for installation.
5On 26 October 2004, the Franna crane and the truck carrying the timber frames arrived at the site. Shortly thereafter, the crane driver, David Fischer, and the dogman, William Mitchell, decided that they could not safely "mobile", or walk, the frames from the road onto the site using the Franna crane because of overhead powerlines which traversed the front of the site. An alternative plan to unload the frames from the truck using the crane on the roadside and transporting them along Henry Street through site access gates and depositing them on the upper level of the building was deemed unsuitable because of concerns about traffic issues held by the two men. The procedure they settled upon was that Steven Martin, the truck driver, would position his truck on the footpath and use his own crane (a Hiab) to unload the frames and "boom" them close to the house in front of the garage where they could be lifted into position by the Franna crane. This procedure, insofar as the two men were concerned, successfully overcame the risk posed by the powerlines.
6While one panel of frames was being lifted into position it struck the steel beam resting on the two brick piers, dislodging it and causing it to fall. The beam struck Mr Mitchell who was at the time assisting as the dogman and controlling the load as it was being lifted into position. Mr Mitchell was seriously injured.
[4]
The Charge
7The CAN set out a description of the offence as follows:
Breach of Section 8(2) of the Occupational Health and Safety Act 2000. The defendant, being an employer failed to ensure that persons not being the defendant's employees were not exposed to risks to their health and safety arising from the conduct of the defendant's undertaking while they were at the defendant's place of work.
8Under the heading "Short particulars" further details were provided:
On the said date at the said place the defendant, being an employer, failed to ensure that persons other than its employees, namely William Gordon Mitchell (injured worker) (then aged 65 years) an employee of Structural Cranes Pty Ltd, were not exposed to risks to their health, safety and welfare arising from the conduct of the defendant's undertaking, namely the construction of a two storey residential home (undertaking) at the site (place of work of the defendant), in that whilst the injured worker was standing in the front of the garage area of the home under construction, an unsecured steel beam was struck and dislodged from its position above the top of the garage area by a pack of timber wall frames being raised to the upper level of the home by crane, striking the injured worker on the left shoulder and left ankle as it fell causing him to sustain serious injuries, including two fractures to his shoulder and a fracture to his left ankle, which prevented him from performing his normal duties for a period of more than seven days by reason that:
The defendant failed to adequately secure the beam in position.
The defendant failed to ensure that persons did not access the area beneath the unsecured beam.
The defendant failed to provide information or warning to the injured worker that the beam was unsecured.
The defendant failed to provide the injured worker with a site induction.
9The CAN also set out the time and date of the offence ("approximately 7am on 26 October 2004") and the place of the offence ("38 Henry Street Merewether NSW (site)").
[5]
Jurisdiction
10Summary jurisdiction is conferred upon the Local Court to hear and determine proceedings for an offence under the OHS Act 2000 by reference to three statutory provisions. Under s 172 of the Criminal Procedure Act 1986 (CPA) proceedings for an offence in the Local Court are to be commenced by the issue of a CAN, in accordance with Ch 4, Pt 2, Div 1 of the CPA. Section 105(1)(a) of the OHS Act 2000 provides that proceedings for an offence under that Act are to be dealt with summarily before a Local Court constituted by a Magistrate sitting alone. Under s 382(1) of the Industrial Relations Act 1996 (IRA) jurisdiction conferred under the OHS Act 2000 may be exercised by the CIM or any other Industrial Magistrate. Section 382(2) provides that the CIM or other Industrial Magistrate constitutes the Local Court when exercising that jurisdiction.
11Section 175 of the CPA provides the mechanism or manner in which the jurisdiction is invoked (see Knaggs v Director of Public Prosecutions (NSW) and Another [2007] NSWCA 83; (2007) 170 A Crim R 366 at [28]-[31]). That section provides:
Form of court attendance notice
(1) A court attendance notice must be in writing and be in the form prescribed by the rules.
(2) The rules may prescribe one or more forms of court attendance notice.
(3) A court attendance notice must do the following:
(a) describe the offence,
(b) briefly state the particulars of the alleged offence,
(c) contain the name of the prosecutor,
(d) require the accused person to appear before the court at a specified date, time and place, unless a warrant is issued for the arrest of the person or the person is refused bail,
(e) state, unless a warrant is issued for the arrest of the person or the person is refused bail, that failure to appear may result in the arrest of the person or in the matter being dealt with in the absence of the person.
(4) The rules may prescribe additional matters to be included in court attendance notices.
(5) A court attendance notice may describe an offence, act or other thing in a way that is sufficient under this Act for the purposes of an indictment or an averment in an indictment.
12Clause 17(2) of the Local Courts (Criminal and Applications Procedure) Rule 2003 prescribes "additional matters" to be included in the CAN in accordance with s 175(4). Clause 17(2) provides:
(2) For the purposes of section 175(4) of the Act, the court attendance notice must include the following matters:
(a) the time and date of the alleged offence or, if the exact time and date are not known, the period of time in which the offence is alleged to have occurred,
(b) the place where the offence is alleged to have occurred.
13The CAN appears to comply with these requirements. Jurisdiction was therefore validly conferred on the CIM to hear the proceedings and the CIM's jurisdiction was validly invoked by reason of the CAN's compliance with s 175.
14None of the foregoing provisions deal with the common law requirement to plead in a CAN the manner of a defendant's acts or omissions. The manner of a defendant's acts or omissions (commonly referred to as essential factual ingredients) constitutes an essential ingredient or element which must be specified or identified in a charge: Kirk at [14], [15], [27], [37], [38], [74]; John Holland Pty Ltd v Industrial Court of New South Wales ; Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338 at [32]-[44]; Lorenzo and Santos v Inspector Peter Hayes [2011] NSWIRComm 54 at [32]; Western Freight Management Pty Ltd v Inspector Patton [2011] NSWIRComm 68 at [8]; State of New South Wales (Department of Education and Training and Department of Juvenile Justice) v Cahill (No 2) [2011] NSWIRComm 33.
15In Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240, Basten JA (with whom Allsop P and Macfarlan JA agreed) said, citing John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508 at 520-52, that a failure to state an essential factual ingredient of the offence will be fatal to the validity of a charge, "unless it is possible to cure the omission or there is some overriding statutory protection" (at [42]).
16The majority in Kirk found that the charges laid under s 15(1) and s 16(1) of the Occupational Health and Safety Act 1983 (OHS Act 1983) failed to identify any particular act or omission: see, for example, [14] and [28]. At [28] the majority judgment explained:
The statements of the offences as particularised do not identify what measures the Kirk company could have taken but did not take. They do not identify an act or omission which constitutes a contravention of ss 15(1) and 16(1). The first particular of the s 15(1) offence suggests that the Kirk company had some systems relating to the operation of the ATV in place, but that they were not sufficient. It does not identify the deficiency in the system or the measures which should have been taken to address it. The second particular does not identify what information, instruction or training was necessary to be given to Mr Palmer or the other employee of the Kirk company. The particulars of the s 16(1) offence say nothing about what should have been done to avoid exposing the contractors to risk to their health and safety from the use of the ATV. Needless to say, the appellants could not have known what measures they were required to prove were not reasonably practicable.
17In Cahill , the Full Court expressed the view that the term "measure" seems to have been regarded by the majority in Kirk as synonymous with the act or omission giving rise to an offence: at [99].
18The effect of the foregoing authorities in the context of occupational health and safety offences under the OHS Act 2000, is that the measure that could have been taken in order to obviate the risk, but was not, constitutes an essential factual ingredient which must be pleaded in a charge. Moreover, the measure must be identified in the charge with sufficient precision or specificity so that the defendant may raise, or propound, a defence. Conversely, the charge must identify with sufficient precision the act or omission relied upon as giving rise to the offence: Cahill at [100].
[6]
Was the risk identified?
19In Cahill , the Full Court held that the risk relied upon must be identified in a charge brought under the OHS Act 2000. This does not mean that in all cases the risk must be expressly identified. As the Full Court in Cahill observed, the majority in Kirk (at [14]) recognised that, "in many instances the specification of the measure which should have been taken or should be taken will itself identify the risk which is being addressed". Of significance was the Full Court's statement in Cahill of the limits or extent to which the risk must be pleaded in the charge in order to show an "identifiable risk" (at [47]-[49]):
Given that the prosecution is required to prove as an essential element of a charge under s 8(1) that there was a risk to the health, safety or welfare of a defendant's employees, it follows that the charge should identify the risk. However, as it was said in Kirk the obligation on the employer is not to "establish that every possible risk was obviated", which is what an employer might face if the pleading is only in relation to a general class of risk, but rather the pleading must show an "identifiable risk".
Provided the pleadings show such a risk, expressly or by necessary implication, the charge will not be invalid or defective. We do not see any obligation on the prosecution to go beyond a short statement identifying the risk. For example, in John Holland Pty Ltd v Industrial Court of New South Wales ; Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338 (" John Holland (CA") the Court of Appeal was satisfied (see [52] per Spigelman CJ) with the description in the Applications for Order that "There was a risk of being struck by falling rock and/or Tunnel Collapse" (we note that special leave to appeal to the High Court has been sought by John Holland). Any additional information could be provided by way of a request seeking further particulars or by the court ordering such further particulars.
Although no objection was ever taken by the defendants in Kirk to the pleaded risk and no further particulars were sought , the High Court held that statements of offence did not plead an identifiable risk, but rather the general risks and hazards in relation to the operation of the ATV on the farm. In contrast, in each of the Applications for Order in Matters 1390 and 1391, there is an identifiable risk to the employees' health, safety and welfare. In our opinion, the appellant could not, in the present proceedings, have been under any misapprehension as to what was the specific risk in Matters 1390 and 1391. Even if it could be contended paragraph (a), in terms, lacked specificity, the charge has to be read as a whole. As Kirk stated, "in many instances the specification of the measure which should have been or should be taken will itself identify the risk which is being addressed", thereby implying that even if the risk is not expressly stated, it may be otherwise identified from what appears in the charge. See John Holland (CA) at [56] per Spigelman CJ, Beazley and Giles JJA agreeing at [123] and [124] respectively. See also Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 at [125] and [130], Doja v R [2009] NSWCCA 303; (2009) 198 A Crim R 349 at [27]-[36] and Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72; (2010) 194 IR 189 at [47], [71] and [75] as to implying elements of an offence from the Application for Order.
20The appellant, in reliance upon the findings of the majority in Kirk at [74]-[75] contended that the Local Court lacked jurisdiction to make any orders as to the conviction and sentence founded on the CAN because it had no power to do so given that no relevant risk was properly identified, or was not identified in the CAN with sufficient specificity.
21According to the respondent, the risk was implicit in the CAN and the appellant can have been in no doubt about what was the risk alleged, namely, the risk of the steel beam falling from height and striking "someone". The respondent also relied on the prosecution's opening as identifying the risk in clear terms.
22There is no explicit or express statement identifying the relevant risk in the CAN. In our view, however, it is identified implicitly with sufficient precision so that the appellant can have been in no doubt about what was being alleged by the respondent. According to the CAN, Mr Mitchell was exposed to a risk to his safety, "in that whilst (he) was standing in the front of the garage area of the home under construction an unsecured steel beam was struck and dislodged from its position above the top of the garage area by a panel of timber frames ... striking (him) ...". The details of the accident set out in the CAN, which took place on the day of the offence, identify the risk to which Mr Mitchell (nominated in the CAN as the "injured worker") was allegedly exposed. The accident is described in the CAN with sufficient clarity. It also directly concerns the person nominated in the charge as the person exposed to a risk.
23If we had found otherwise we would emphasise that identification for the first time in the prosecution's opening address of the risk relied upon by the prosecutor, not otherwise sufficiently identified in the charge, infringes the requirement that essential elements must be identified in the charge. This requirement was recently explained in Lorenzo and Santos v Inspector Peter Hayes [2011] NSWIRComm 54 where a Full Court said (at [53]):
These observations apply with equal force to particulars which may be provided by the prosecution in its opening address. Identifying the essential factual ingredients of a charge for the first time in an opening infringes the requirement that essential elements are to be identified in the pleadings (that is, in the charge: Kirk at [14]). Non-essential particulars may be provided where they have not earlier been sought. That is because non-essential particulars are not required to be pleaded in a charge. They may be supplied outside of the pleadings in order to clarify matters in the pleadings so that, for example, a defendant can propound a defence: Lodhi v The Queen (2006) 199 FLR 303 at [104]. Where particulars, or inadequate particulars, of this latter type have not been supplied, the Court has an inherent jurisdiction to order them: see for example Saffron v The Queen (1988) 17 NSWLR 395 at 447; 36 A Crim R 262 at 313 per Hunt AJA.
[7]
Were the measures identified?
24The CAN alleged four acts or omissions (measures) said to constitute the manner in which, or how, the offence was allegedly committed.
25The appellant's primary focus on appeal was the first alleged measure (to which we will refer for convenience as "Particular 1"). Particular 1 alleged that the appellant failed to ensure Mr Mitchell was not exposed to a risk to his safety, "by reason that ... (the appellant) failed to adequately secure the beam".
26The Local Court was said to lack jurisdiction to make the orders convicting and sentencing the appellant because no particular act or omission, or sets of acts or omissions, were identified in the CAN, or in the proceedings at any time. According to the appellant, the allegation in Particular 1 is clearly insufficient because the measure that needs to be taken (to adequately secure the beam) is not stipulated in the charge, and stipulation of the measure was required so that the appellant could consider whether and if so what defences might be available under s 28 of the OHS Act 2000. The appellant placed reliance for this proposition on a passage in Kirk where the majority commented on the necessity to identify the measure in order that the defences under the OHS Act 1983 can be properly addressed (at [16]):
... A feature of the legislation here in question is that where an employer is charged with an act or omission which is a contravention of s 15 or s 16, it will be necessary for the employer to establish one of the defences available under s 53 in order to avoid conviction. Where reliance is placed by the employer on s 53(a), it would be necessary for the employer to satisfy the Industrial Court, to the civil standard of proof, that it was not reasonably practicable to take the measure in question. Such a defence can only address particular measures identified as necessary to have been taken in the statement of offence.
27The respondent, in response to the submissions on jurisdiction, contended that Kirk is not authority for the proposition that a charge which does not specify a risk or a measure fails to ground jurisdiction in the Court. Secondly, the respondent, in answer to the appellant's submission that the measure was not stipulated in Particular 1, said it was sufficient for the prosecutor to allege the measure, that is, a failure to secure the beam, without alleging the way in which the beam was to be secured. This was so for two reasons. First, while the majority in Kirk referred to a necessity to specify a measure it did not require the specification of the means by which the measure was to be employed. Further, the measure is a requirement "to adequately secure the beam in position" and no complaint is made by the appellant about the use of the word "adequately", nor could it be. Both the Court of Appeal and the Full Court of this Court held that the use of the word "adequately" does not of itself render a particular inadequate: see The GEO Group Australia Pty Ltd (t/as Junee Correctional Centre) v WorkCover Authority of New South Wales [2011] NSWIRComm 14; John Holland Pty Ltd (Court of Appeal)
28Secondly, the requirement, or measure, "to secure" carries an absolute value. The word "secure" is defined in the Macquarie Dictionary (5 th Ed) (at p1491) as:
Free from or not exposed to danger; safe. Not liable to fall, yield, become displaced, etc, as a support or a fastening.
29The definition of the verb "to secure" includes the following:
To make secure from danger or harm; make safe; to make firm or fast.
30The respondent characterised the prosecution case as one where the measure which the appellant failed to adopt was the securing of the beam. The method of securing the beam it was said was not material. It included the positioning of the beam on the ground so that it could not fall. It also included the fixing of the beam in position on top of the columns where it rested unsecured.
31In the alternative, the respondent submitted that the prosecutor identified the two methods nominated above in the prosecution's opening by which the beam might have been secured, thereby identifying two measures which addressed the risk.
32In Kirk (at [74]) the majority found that the Court at first instance had fallen into jurisdictional error because it had misconstrued s 15 of the OHS Act 1983 which led it to make orders convicting and sentencing Mr Kirk and his company, "where it had no power to do so". The majority continued at [74] and [75]:
The first of the errors in question in this case - the errors of construction of s 15 of the OH&S Act - can be identified as a jurisdictional error of the third kind identified in Craig . That is, it can be identified as the Industrial Court misapprehending the limits of its functions and powers. Misconstruction of s 15 of the OH&S Act led the Industrial Court to make orders convicting and sentencing Mr Kirk and the Kirk company where it had no power to do so. It had no power to do that because no particular act or omission, or set of acts or omissions, was identified at any point in the proceedings, up to and including the passing of sentence, as constituting the offences of which Mr Kirk and the Kirk company were convicted and for which they were sentenced. And the failure to identify the particular act or omission, or set of acts or omissions, alleged to constitute the contravening conduct followed from the misconstruction of s 15. By misconstruing s 15 of the OH&S Act, the Industrial Court convicted Mr Kirk and the Kirk company of offences when what was alleged and what was established did not identify offending conduct.
The explanation just offered also demonstrates that the error made by the Industrial Court was not only an error about the limits of its functions or powers. It was an error which led to it making orders convicting Mr Kirk and the Kirk company where it had no power to do so. The Industrial Court had no power to do that because an offence against the OH&S Act had not been proved. It follows that the Industrial Court made orders beyond its powers to make.
33There are indications in the majority judgment that the defective charges would have been curable had appropriate particulars been provided at some stage during the course of the proceedings, but before those proceedings were finally determined. In the majority judgment at [30], for example, appears the following passage:
However, it may be said that the matter should not have proceeded without further particularisation of the acts and omissions said to found the charges. Without that particularisation, the Industrial Court would be placed in the position to which Evatt J referred in Johnson v Miller where it would act as "an administrative commission of inquiry" rather than undertake a judicial function.
34To similar effect is the finding in Kirk at [74], cited above, that the Court at first instance had no power to convict and sentence Mr Kirk or his company, "because no particular act or omission ... was identified at any point in the proceedings, up to and including the passing of sentence": (see also John Holland (Court of Appeal) per Spigelman CJ at [41]-[45]).
35In further considering whether the measure relied upon was sufficiently identified in Particular 1, it is necessary to resort to the procedural background in this matter.
36The CAN was served by post on the appellant on 13 September 2006. On 28 February 2007, the appellant wrote to the respondent seeking the following particulars:
Please identify the facts and matters on which it is relied to assert that the defendant failed to adequately secure the beam in position.
Please identify the manner by which it is alleged the beam ought to have been adequately secured.
Please identify the facts and matters by which it is asserted that the failure to provide the injured worker with a site induction gave rise to a risk to his health, safety and welfare.
37On 16 March 2007, the respondent sent the following written reply:
We refer to your letter of 28 February 2007 requesting further and better particulars, and are instructed to respond as follows:
Please identify the facts and matters on which it is relied to assert that the defendant failed to adequately secure the beam in position.
1.1 This is not a proper request for particulars but a request for evidence. The Prosecutor has served a brief of the evidence upon which he proposes to rely in support of the charge that has been laid against the Defendant.
This is not a proper request for particulars. The prosecution is not required to state what action the Defendant should have taken to comply with obligations under the Occupational Health and Safety Act 2000 - see WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Limited [1999] 91 IR 199.
Please identify the facts and matters by which it is asserted that the failure to provide the injured worker with a site induction gave rise to a risk to his health, safety and welfare.
3.1 This is not a proper request for particulars as it does not pertain to the essential elements of the offence with which the Defendant is charged.
3.2 It is sufficient for the commission of an offence under section 8(2) for the Prosecutor to demonstrate the risk to health and safety by reliance upon the omission by the Defendant.
3.3 It is noted that clause 213(1) of Occupational Health and Safety Regulation 2001 provides that a principal contractor for a construction project must not direct or allow another person to carry out construction work on the construction project unless the principal contractor is satisfied that the person has undergone OHS induction training. Clause 216 defines "OHS induction training" to include site specific induction training.
38The appellant attempted a second time by letter of 5 April 2007 to obtain particulars:
We refer to your correspondence dated 16 March 2007 and observe that your instructed response provided little assistance to the defendant in understanding the nature and complexity of the charges brought against it.
Insofar as your responses (adopting your numbering) are concerned, we make the following observations and requests:
A request to identify the "facts and matters" relied on is not a request for evidence, but a request that you inform us of the material facts on which the prosecution will rely. On obtaining this material, the defendant ought be able to ascertain the case it is called upon to meet - see discussion by his Honour Justice Joske in Trade Practices Commission v Total Australia Limited 24 FLR 413.
It is no answer to a request to provide the material facts that a brief of evidence has been served. It is not for the defendant to be obliged to search through the evidence for the purpose of trying to second guess what the prosecution will be asserting constitutes the material facts.
We repeat the request previously made and set out by you in point 1 of your correspondence.
Further, we note that the short particulars at "1." uses the adverb "adequately" to qualify the alleged failure to secure.
Please explain what you mean by the words "to adequately secure"?
[8]
Particulars 2, 3 and 4
71We turn now to consider Particulars 2, 3 and 4 in relation to which the appellant submitted that the allegations founded on those Particulars were also insufficient to meet the proper requirements for a valid CAN.
72Particular 2 (which alleged a failure, "to ensure that persons did not access the area beneath the unsecured beam") was said to be defective because it was based upon the premise that the unsecured beam was "in position" on the brick piers on 26 October 2004, and it referred to persons in general not accessing the area beneath the beam. It was also said to be defective because it was not expressed to relate back to the nature of the tasks being undertaken at the time under consideration, and it did not identify the response required of the appellant.
73Contrary to the appellant's first contention, the proceedings below reveal that the respondent conducted its case with regard to Particular 2 based on the unsecured beam being in position on the two brick piers. Moreover, the Particular is referable to the time at which the movement of the timber and the striking of the beam occurred, specified in the CAN as "approximately 7.00am on 26 October 2004". This is alleged in the CAN to be the time at which Mr Mitchell ("the injured worker") was standing in front of the garage area when he was struck by the dislodged beam. The measure is also, in our opinion, sufficiently identified in the Particular, namely, the appellant should have prevented Mr Mitchell from accessing the area where he was exposed to the risk of being struck by the unsecured beam. The appellant at no stage sought specific and separate particulars with regard to Particular 2. This suggests that it was reasonably content with, and understood, the allegation made against it in the Particular.
74The appellant also contended that if the respondent had properly pleaded its case in the CAN with regard to Particular 2, it would have been necessary for the respondent to adduce evidence as to the type of force necessary for the beam to become dislodged and unless and until that could occur the beam posed no risk to anyone. In addition, without this evidence the defence under s 28 could not be properly addressed. This was said to be because the nature and degree of any force required to compromise the security of the beam would have to have a real bearing on the foreseeability of it falling and thus the practicability of any required response.
75According to the respondent, the risk was that the beam might fall if dislodged from the place where it sat if a force sufficient to make it fall were applied to it. This is a matter of common sense and rational deduction from the CAN. The size of the impact, if relevant, required to dislodge the beam goes only to the likelihood of the risk coming to fruition or the issue of remoteness. It does not identify the essential character of the risk.
76Long-established authority demonstrates that what the respondent was required to prove was that the omission pleaded in Particular 2 gave rise to the risk to which Mr Mitchell was exposed. It is open to a prosecution to prove the connection by reliance on the facts underpinning an accident if the inference is available that the accident, and the sustaining of an injury arising from that accident, constitutes a manifestation of the risk relied upon: see for example Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 452. We have no doubt that the unsecured beam which was dislodged by the timber frames, causing it to fall on Mr Mitchell and injuring him, was directly illustrative of the risk to safety relied upon by the respondent, namely that the beam, being unsecured and resting on the brick piers, could be dislodged and fall and strike someone in the near vicinity. That being so, the appellant's contention that it was incumbent on the respondent to prove the type of force necessary to dislodge the beam in order to make out its case cannot be sustained.
77As to evidence led by the appellant in the proceedings below with regard to the nature and force required to move the beam, this evidence may have been relevant to an issue going to the possibility of the risk coming to fruition or the remoteness of the risk. It would need to be assessed against other evidence going to the circumstances of the accident where the accident was relied upon as an illustration of the risk. Here, the facts underpinning the accident disclose that the risk as alleged was real, not remote. The CAN must also sufficiently identify the risk alleged to enable a defendant to know the case it has to meet. We have earlier found that the CAN satisfies this requirement.
78With regard to Particular 3, the appellant raised three matters. First, it was contended that the respondent had misinterpreted the width of the Particular in its opening by describing the allegation as a "failure to warn people or to provide information or to warn people that the beam was unsecured". Secondly, it was contended that Particular 3 is silent as to what was the information or warning or how, when or by whom the information or warning was to be given. Thirdly, the CIM's manner of dealing with Particular 3 was said to be inadequate and bereft of necessary reasoning.
79The contentions in our opinion lack merit. With regard to the first matter, the respondent's case did not rely on a failure to warn or provide information to persons in general who were present at the site. Its case was confined to the allegation in Particular 3, namely, that Mr Mitchell was not the beneficiary of any warning or information with regard to the risk posed by the unsecured beam. With regard to the second matter at no stage of the proceedings did the appellant dispute that it had failed to issue a warning or inform Mr Mitchell that the beam was unsecured. The appellant must be taken to have understood the allegation in Particular 3 because it did not request any further particulars of the allegation. In any event, in our opinion, Particular 3 describes the measure with sufficient clarity to have enabled the appellant to meet the respondent's case.
80The third matter criticises a failure of the CIM to take into account first that the appellant required and expected a full site inspection to be undertaken by the crane operator before work was commenced in accordance with its procedures in place at the site, and secondly, that highly experienced specialist operators would know not to stand underneath a load while the load was being moved. Earlier, we set out the facts that preceded the accident. Those facts reveal that both the crane driver and Mr Mitchell undertook an inspection of the site and ultimately devised a plan to unload and deliver the frames in order to overcome the perceived risks associated with the Franna crane coming into contact with the powerlines. The workers were aware that the beam was unsecured but this awareness does not absolve the appellant from its statutory obligation to ensure the safety of all persons working in the vicinity of the beam. The appellant controlled the site, not the subcontractors who visited the site on the day of the accident. The appellant also knew that the subcontractors were attending the site on the day and it must be taken to have known of the progress of construction of the building. We have sought to emphasise in some detail in this judgment the nature of the obligation imposed on a defendant under the 2000 Act. It is absolute (in the sense we have described) and non-delegable. Consequently, it was the responsibility of the appellant, not the subcontractors, to ensure that the site was safe and without risk.
81The appellant's contentions with regard to the remaining Particular 4 (failure to provide "the injured worker with a site induction) focussed primarily on the failure of the CIM to order the provision of further particulars by the respondent during the appellant's preliminary application for further particulars in relation to Particulars 1 and 4. According to the appellant the respondent's failure to supply the particulars meant that it was denied procedural fairness. It was also forced to defend the allegations in Particular 4, which it said were defective. It was further contended that it was impermissible for the respondent, given the form of the CAN, to assert in written submissions that the appellant had failed to induct Mr Mitchell to the site "on 26 October 2004" or to assert that, "as a minimum the site induction should have alerted Mitchell to the presence of the steel beam, the danger it posed to him, and the control mechanisms that the defendant had put in place to eliminate that danger".
82The respondent's letters responding to the appellant's requests for further particulars with regard to Particular 4 have been earlier set out. The appellant's application by way of Notice of Motion, although framed generally, was largely confined to its requests for further particulars with regard to Particular 1. Any complaint with regard to Particular 4 during oral hearing of the application appears to have been put on the general basis that Particular 4 lacked sufficient content such that the appellant did not know the nature of the case alleged against it. A written outline of submissions prepared by the appellant which was handed up to the Court during the hearing of the Motion referred to the respondent's reiteration of cl 213 of the Occupational Health and Safety Regulation 2001 (2001 Regulation) as not constituting a response to its request for particulars contained at point 3 of its letter of 28 February 2007 concerning those "facts and matters" relevant to the failure to provide Mr Mitchell with a site induction. No further complaint with regard to Particular 4 was made by the appellant in the proceedings below following the CIM's decision not to order that further particulars be supplied.
83In our opinion, Particular 4, by reference to the other particulars in the CAN, is confined to the failure to conduct a site induction on 26 October 2004. The appellant sought to rely on evidence establishing that Mr Mitchell had been inducted to the site on a previous occasion and therefore, by implication, it was not incumbent upon the appellant to undertake a further site induction. That evidence was said to consist of a risk assessment of the site conducted by the appellant's supervisor, Gregory Ballard, on 21 June 2004, a running sheet prepared by Mr Ballard showing that the crane driver and dogman from Structural Cranes were inducted to the site on 3 September 2004 and a tax invoice of 3 September 2004 issued by Structural Cranes to the appellant which nominated Mr Mitchell as the rigger.
84Mr Ballard gave evidence in the proceedings below. During cross-examination, he said when shown the tax invoice of 3 September 2004, that that was the first time Structural Cranes personnel had visited the site. A proposition was put to him that on that occasion he had inducted Structural Cranes personnel to the site. His response was, "Yes ... I would have been the only person there to show them what to do". Otherwise, Mr Ballard had no independent recollection of actually performing a site induction on that day. The first document relied upon suggests that on 6 September 2004, or at some earlier stage (the relevant entry is undated) a, "crane driver and dogman" from Structural Cranes were inducted to, "site hazards on first visit". The second document suggests that on 3 September 2004, Mr Mitchell, nominated as the rigger, attended the site to "move some timbers". Mr Mitchell also gave evidence in the proceedings below. He recalled visiting the site on one occasion prior to 26 October 2004. He said at that time construction work had not commenced. There was a cement slab and a number of bricks that needed moving. He said he and others could not get the crane onto the site in order "to do the job" because the ground was wet and boggy. He was shown the tax invoice dated 3 September 2004 and said that that was the day they could not get the crane onto the site. He confirmed that that was also the only time he had been to the site prior to 26 October 2004. He also denied having been inducted to the site at any stage.
85This evidence insofar as it relies on establishing the fact that Mr Mitchell was inducted to the site on a previous occasion is inconclusive. The documentation only establishes that on 3 September 2004 Structural Cranes was hired to move timber at the site but according to Mr Mitchell this did not occur because of the conditions prevailing at the site. The document dated 6 September 2004, which was signed by Mr Ballard, suggests that an unnamed crane driver and dogman from Structural Cranes were inducted to the site, but Mr Ballard had no independent recollection of that having occurred. Mr Mitchell denied ever having been inducted to the site.
86Of significance was Mr Mitchell's description of the site on his earlier visit. That description reveals that construction of the residence had not commenced. It consisted of a concrete slab and some bricks that needed moving. Based on this evidence it was open to the CIM to find as he did that "the debate" as to whether Mr Mitchell had been inducted to the site by the appellant prior to 26 October 2004 was, "a barren one, since for a site induction to have any relevance it has to identify hazards and these will obviously change from time to time".
87Contrary to the appellant's submission, we are of the view that the CAN was not defective by reason of a failure to sufficiently identify the measure not taken alleged in Particular 4. The CAN clearly nominated 26 October 2004 as the date on which the allegation in Particular 4 was based. The Particular, in our view, also sufficiently set out the measure relied upon, that is, the appellant failed to provide Mr Mitchell with a site induction. The Particular cannot be considered in isolation. It formed part of the CAN and was directly referable both to the date nominated in the CAN of 26 October 2004, and to the particulars of the accident set out in the CAN.
88The appellant also contended that the CIM had impermissibly reversed the onus of proof with regard to Particular 4 when his Honour said, "in my view the evidence is insufficient to establish that an induction took place". While it is indisputable that the onus was on the respondent to prove the allegation beyond reasonable doubt, the evidence clearly established to the requisite standard that on 26 October 2004 the appellant did not provide Mr Mitchell with a site induction. Indeed, that fact did not appear to be in dispute. Rather, the debate centred upon whether Mr Mitchell had been inducted to the site on a previous occasion.
89Given our conclusions on the issue of whether the CAN was defective by reason of its failures to sufficiently identify the measures in the Particulars the CIM's finding of guilt with regard to Particular 1 cannot stand. The Particular was defective because it did not specify the second measure which was relied upon by the respondent during the course of the proceedings. Otherwise, the CAN identified the risk and the measures relied upon to make out the Particulars 2, 3 and 4 with sufficient clarity and precision to enable the appellant to meet the respondent's case.
[9]
The reasoning process of the CIM
90The grounds of appeal also raise a discrete issue regarding the CIM's reasoning process in the judgment on liability. In written submissions the appellant identified four issues, which it said demonstrated errors in the reasoning process. Those issues consisted of the factual dispute concerning the allegation in Particular 4 with regard to the failure to provide Mr Mitchell with a site induction; the manner in which the work was being done at the site at the time of the accident; the importance of the subcontractors' expertise in the performance of their duties; and, the CIM's consideration of the expert evidence. These topics will be considered seriatim .
[10]
Site induction
91According to the appellant, the CIM posited the wrong question with regard to the allegation in Particular 4. In the judgment, the CIM formulated the issue in the following way: "Whether on the day of the alleged offence the defendant ensured that persons at the site, including the injured worker, Mr Mitchell, had the benefit of a site induction". This formulation, the appellant contended, was wrong because it purported to apply to whether persons in general had undergone a site induction. Particular 4, however, was confined in its terms to whether Mr Mitchell had undergone a site induction.
92The appellant also contended that the CIM failed to analyse the evidence relevant to the issue of whether Mr Mitchell had been inducted to the site on a previous occasion, or at all.
93We earlier observed that the respondent's case with regard to Particular 4 was consistent with the allegation set out therein, that is, it was confined to Mr Mitchell, "the injured worker". The CIM's reasoning with regard to this aspect of the allegation was also entirely consistent with the allegation in Particular 4, directed as it clearly was to Mr Mitchell. The CIM referred to the evidence of Mr Mitchell that he was not given a site induction at the site on 26 October 2004. His Honour also referred to the "two invoicing documents" which had been prepared about two months before the accident occurred (the documents earlier referred to, dated 3 and 6 September respectively). The documents were relied upon by the appellant as evidence that Mr Mitchell had been inducted to the site on an earlier occasion. His Honour did not accept that evidence as sufficient to establish that an induction had taken place on an earlier occasion.
94The appellant, in written submissions, referred in detail to evidence given by Peter James, a crane driver from Structural Cranes; Mr Martin, Mr Fischer, Darren Wright, the manager of Structural Cranes, and Mr Ballard. This evidence, it was contended, was not analysed by the CIM on the issue of whether Mr Mitchell had been inducted to the site. In relation to Mr Ballard's account as to whether an earlier site induction involving Mr Mitchell had occurred, the appellant also contended that it contradicted the CIM's finding which was, "[N]o evidence was called from any person employed by the defendant to the effect that they had provided Mr Mitchell with a site induction".
95An examination of the evidence set out in the appellant's submissions does not provide support for the appellant's contentions that the CIM either failed to analyse the evidence relevant to whether Mr Mitchell had undergone a site induction or made a finding, or findings, inconsistent with that evidence.
96The evidence of Mr James relied upon by the appellant was of no direct relevance to the issue. Mr James expressed agreement on various propositions put to him in cross-examination to the effect that it was part of the job of a crane driver and dogman to inspect a site and assess it for hazards. The evidence of Mr Martin as set out in the appellant's submissions consisted of his recollection that he and Mr James had noticed the beam before the accident and they had spoken of the need, "to watch the beam". Mr Wright's evidence (as set out in the submissions) did not touch on the issue of a site induction. He simply agreed to several propositions put by the appellant in cross-examination that the appellant had a practice of hiring crane drivers and dogmen from Structural Cranes, and that Messrs Mitchell, Fischer and James were, in his opinion, highly qualified men. Mr Fischer's evidence, set out in the appellant's submissions, outlined a conversation he had had with unnamed carpenters at the site on the day of the accident which apparently involved one of the carpenters warning him about "the columns", saying, "don't knock them over or bump them or anything like that". As for Mr Ballard's evidence, it has been earlier set out and needs no repetition. Contrary to the appellant's suggestion that Mr Ballard "acknowledged" in his evidence that Mr Mitchell was inducted by him to the site in early September 2004, the evidence does not sufficiently support the suggestion. That evidence included the invoice of 3 September 2004. The invoice, it will be recalled, was generated by Structural Cranes. It nominated an activity ("move some timbers") to be performed at the site and Mr Mitchell as the rigger. Mr Ballard, however, had no independent recollection of actually performing a site induction on that day. When asked in cross-examination whether he had inducted "persons ... from Structural Cranes" to the site on 3 September 2004, his response, ("Yes ... I would have been the only person there to show them what to do") could only have been based on what the document indicated, not what he recalled.
97Finally, on this issue, it will be recalled that Mr Mitchell said, in his evidence, that conditions at the site on 3 September 2004 prevented him and the other workers from performing any work at the site on 3 September 2004. He recalled that the site at that time consisted of a concrete slab and some bricks. He denied having been inducted to the site at any time. The CIM took this evidence into account in his consideration of Particular 4 when his Honour found that, "On the day in question ... no site induction was provided to Mr Mitchell". The day in question was a reference to Mr Mitchell's first visit to the site when construction of the residence was in the early stages. The CIM said that the debate on this issue was "a barren one", because, "[F]or a site induction to have any relevance, it has to identify relevant hazards and these will obviously change from time to time. For Mr Mitchell to have received an adequate site induction in relation to this site, warning him of general hazards at the site, he would have needed a site induction at the site at the relevant time, that is at the time he was exposed to the relevant risk". In our opinion, this finding was open to the CIM.
98The real issue was whether Mr Mitchell had, consistent with the allegation, not been inducted to the site on 26 October 2004. The respondent's case demonstrated that Mr Mitchell had not been inducted to the site on that day, or on any previous day.
[11]
Manner in which work was being done at the site, and subcontractors' expertise
99The submissions of the appellant with regard to the second and third issues substantially overlap. That being so, the issues will be considered together. According to the appellant, a threshold question which arose for consideration and demanded analysis by the CIM involved consideration of whether the events which culminated in the accident on 26 October 2004 arose from the "uncontemplated, independent decisions" of experienced subcontractors which exposed them to a risk to their safety arising from the conduct of the appellant's undertaking or whether the risk arose from the "neglect" of the subcontractors in the performance of their work.
100The critical question to be considered under s 8(2), is whether the employer failed to ensure that non-employees at its place of work were not exposed to risks to their safety arising from the conduct of its undertaking. The obligation on the employer under the section, as we have sought to emphasise, is absolute (subject to any relevant defences) and non-delegable. This proposition contemplates that any neglect, inadvertence or error on the part of a worker that may have contributed to the risk does not diminish the nature of the obligation imposed on the employer. The proposition was expressed by the Full Court in Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31; (2001) 103 IR 143 at 145:
... The magistrate appears to have reached her conclusion as to the objective seriousness of the offence, having regard to the lack of common sense of the injured worker. It is reasonably clear from her decision that it was concluded that the conduct of the injured worker effectively removed or minimised the liability of the respondent in relation to the lack of training or instruction afforded the employee. This was wrong in principle. Section 15 of the Occupational Health and Safety Act requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing. We note the following observations of Bauer J in WorkCover Authority (NSW) (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 at 257:
''Much of what was urged by Mr King was directed to showing that the worker who was killed knew of, and therefore ought to have avoided the exposed electrical connections. In one sense such a submission militated against the position of the defendant; the very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry.''
101The CIM addressed the issue raised by the appellant, which was whether Mr Mitchell, an experienced and qualified dogman engaged by the appellant to undertake the work assigned to Structural Cranes, was incompetent in the manner in which he had conducted the work and chose to ignore the appellant's system of work developed for the site.
102The evidence concerning the activities of the Structural Cranes employees at the site prior to the accident has been earlier set out. The CIM set out in some detail the appellant's submissions on the issue which were to the effect that Mr Mitchell had chosen to abandon a system of work developed by the appellant for the site, instead directing and controlling the work in an incompetent manner and in a manner inconsistent with the proper and safe discharge of the responsibilities of a dogman. The CIM did not accept these submissions. In particular he rejected the submission that Mr Mitchell was in charge of the operation, finding that "no one was in charge". His Honour referred to the evidence concerning the decision of Messrs Mitchell and Fischer (and also Mr Martin who appeared to have acquiesced in the decision) to devise the alternative plan for moving and lifting the timber frames because of the view the men formed that the appellant's plan was unsafe by reason of the presence of the overhead powerlines. In relation to this evidence, the CIM said:
... The simple fact is that these contractors who were not employees of the Defendant had arrived at the site, found that the proposed system of work was inadequate and had then, in an ad hoc way, cooperated with each other in what they clearly regarded was a reasonable alternative way of placing the timber frames in the desired position at the site.
...
... I am satisfied on the evidence before me that Mr Mitchell, Mr Fischer and Mr Martin had between them accurately identified potential risks associated with the original plan due to the positioning of overhead power lines and due to the motor vehicle traffic on the road immediately adjacent to the building site.
103The CIM also referred to the appellant's submission that it was entitled to rely on the specialist expertise of the subcontractors to perform the work safely because it lacked the necessary expertise. The CIM rejected the submission in the following passages from the judgment:
In my view there is nothing remarkable about a decision by a principal building contractor to subcontract specialist tasks which have to be performed on a building site. This may involve specialist crane companies to supply cranes together with specialist teams, or electrical subcontractors, or plumbing subcontractors and so on. It is obvious that such subcontractors are engaged on the basis that they bring their specialised skill and knowledge with them onto the site. However, what they do not bring with them onto the site is site specific knowledge especially site specific knowledge relating to any hazards that may be present and in relation to which they require appropriate notice and warning. A building site is an ever changing collection of potential hazards. As each stage of the construction is commenced new hazards arise whilst others are eliminated. As each new team of employees or subcontractors comes onto the site to perform some specific task in the construction process, the condition of the site changes.
It has been observed in occupational health and safety prosecutions before the Industrial Court of New South Wales that a major role, indeed the major role for a principal building contractor to play is the role of providing supervision and coordination between such different groups and trades as they move on and off a building site. In this case, whilst the Defendant had given some consideration to the task and had prepared a plan for the required work to be performed, the plan itself was clearly inadequate in that it failed to take into account the position of the overhead power lines and the traffic problems which impacted on the positioning of the Franna crane. The Defendant did not have an employee on site authorised to provide supervision and coordination to the subcontractors who were at the site at 7.00am on that day. This meant that there was no-one at the site authorised and instructed to ensure that such subcontractors were fully aware of any hazards that might be relevant to the task they were about to perform. The evidence is clear that no site induction was provided to such contractors on the day in question. On the evidence, Mr Mitchell was never given an induction of the site, but even if he had received some induction many weeks earlier, such induction would have been irrelevant in that it would not have included any relevant warning alerting him to risks to his safety present at the site on the day of the alleged offence.
104In our opinion, the CIM was entitled to make these findings. The matters taken into account by his Honour were relevant to the issue under consideration which, in essence, was whether the subcontractors' actions in devising or implementing the alternative plan had exposed themselves to risk thereby effectively exculpating the appellant because it was entitled to rely on their expertise and qualifications to make safe decisions and to perform the work safely.
105During the hearing of the appeal, the appellant characterised the issue as requiring consideration of whether the risk arose from the conduct of its undertaking or whether it arose from independent choices made by people other than in accordance with the terms of the contract. The terms of the contract according to the appellant were to attend the site with the Franna crane, driver and dogman and unload the frames from the truck on the road and "mobile" them along the street through the site access gates and onto the upper level of the residence. The conduct of the subcontractors in acting outside those terms was said to give rise to a real risk where previously the risk was "fanciful". It was "fanciful" because under the appellant's system the stability of the beam would not be compromised and the beam of itself posed no danger to anyone. So characterised, the actions of the subcontractors gave rise to the risk to which Mr Mitchell was exposed and this risk in turn did not arise from the conduct of the appellant's undertaking.
106The appellant's undertaking was described in the CAN as "the construction of a two-storey dwelling". This broad description, in our opinion, readily encompasses the activities of the subcontractors who were engaged to deliver and unload the timber frames and deposit them on the upper level of the building. The fact that they set out to accomplish this task by adopting an alternative plan, which they believed would accommodate safety concerns, falls to be assessed by reference to circumstances prevailing at the site. Those circumstances included the appellant's failures to take the measures set out in Particulars 2, 3 and 4. Moreover, the appellant as the principal contractor at the site bore the obligation to ensure the safety of the subcontractors. That obligation could not devolve on Mr Mitchell, or the other subcontractors, to ensure their own safety. It was the appellant's failure to take the measures specified in Particulars 2, 3 and 4 that resulted in the risk that the beam, resting unsecured on the piers, could be dislodged by the load of timber frames, and injure Mr Mitchell who was working near the beam (the necessary causal connection between the identified risk and the alleged omissions).
107The "contractual terms" upon which the appellant placed reliance were not in writing. What, in our opinion, the appellant characterised as the terms of the contract between the parties more accurately describes the procedure, or the system devised by Mr Ballard as the appellant's supervisor at the site. Mr Ballard was absent from the site on 26 October 2004. The only evidence of the work that Structural Cranes was engaged to do on 26 October 2004 appears in the Statement of Facts tendered by consent in the substantive proceedings. According to that document:
On 25 October 2004 Masterton contracted with Structural Cranes Pty Ltd ("Structural") to attend the site with a Franna crane, a crane driver/operator and a dogman to unload the frames from the back of a truck and place them on the upper level of the building ready for installation.
108The procedure devised by Mr Ballard for the unloading of the frames was also described in the document:
Ballard had earlier devised a system to unload the frames by unloading the frames from the truck using the Franna on the roadside and then "mobile" them along Henry Street, through the site access gates and then land them on the upper level.
109In support of the contention that the risk to which Mr Mitchell was exposed did not arise from the conduct of its undertaking, the appellant directed the Court's attention to Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) [2000] NSWIRComm 239; (2000) 102 IR 84. An issue in the case was whether electrical work being performed by subcontractors, Kennedy-Taylor, which involved the reconnection of thermostats, was work that fell within Mainbrace's undertaking. In Mainbrace , the subcontractors had been engaged under a variation to the original contract to remove cable trays and disconnect the thermostats. With regard to the reconnection of the thermostats, the Full Court held it did not form part of the conduct of Mainbrace's undertaking. The Full Court, at [27], said:
It does not seem to us that re-connection of the thermostats was a term necessary for the effective operation of the contract between the appellant and Kennedy-Taylor or that it was a term that ''goes without saying'': BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266. In other words, because Kennedy-Taylor disconnected the thermostats on the appellant's instructions it does not necessarily follow that re-connection was part of the contract. On the evidence, it could have been a matter for Chisholm to direct Kennedy-Taylor to re-connect the thermostats. Accordingly, in the absence of reliable evidence to the contrary, we are unable to find that the re-connection of the thermostats was part of the conduct of the appellant's undertaking.
110In contrast, the contract between the appellant and Structural Cranes consisted of a broad instruction to unload the frames using the Franna crane and deposit them on the upper level of the building. If, for example, the subcontractors had used the Franna crane to lift a load of bricks situated at the site without being instructed to do so by the appellant and an accident had occurred injuring Mr Mitchell, a submission that the risk did not arise from the appellant's undertaking might have more merit. The terms of engagement of the subcontractors were confined to the unloading and depositing of the timber frames on the upper level of the building, and accordingly the activity fell within the conduct of the appellant's undertaking to construct the dwelling. The original procedure devised by Mr Ballard for accomplishing the task was not part of that engagement. The fact that the subcontractors departed from that procedure, for reasons, we might add, which appear to be soundly based, arises for consideration in the context of the appellant's statutory obligation, any safe systems or procedures put in place at the site to regulate the work to be performed, the relevant risk or risks relied upon and the omissions alleged in the charge.
[12]
The CIM's consideration of the expert evidence
111According to the appellant, the CIM's reasons were deficient with regard to his treatment of the appellant's expert evidence. The CIM, it was contended, neglected to refer to much of that evidence or referred to it inadequately. Two particular "aspects" of the expert evidence were focused upon by the appellant as revealing errors in the reasoning process. The first aspect concerned the issue of whether the beam could be secured in position. According to the appellant, the issue involved consideration of the degree of force required for the beam to be dislodged. The evidence relied upon by the appellant to demonstrate the degree of force required included a reconstruction (of the circumstances of the accident) and an evaluation of the forces by an expert, Professor Michael Ashley, from the School of Physics, University of New South Wales. The second aspect concerned the evidence of Frank Bleasdale, a crane supervisor and dogman.
112The appellant, in written submissions, set out in considerable detail the evidence of Mr Zomaya and Mr D'Amici, both of whom performed tests which purported to replicate the events of 26 October 2004 immediately preceding and at the time of the accident. The appellant said that the experiments proceeded upon Mr Zomaya's understanding that the load (930kg) employed in the experiments was heavier than the actual load of timber frames (730kg), which struck the beam causing it to dislodge. According to Mr Zomaya, the travel speed of the crane used in the experiment was slower than the travel speed of the crane at the time of the accident. The appellant also sought to draw comfort from the fact that Mr Zomaya was never challenged with regard to his assumptions, nor his calculations and conclusions, which were based on those assumptions. Similarly, Mr D'Amici, in a report, concluded that a force of 59.6kg was required to dislodge the beam given an assessed impact force of 918kg. The appellant said that Mr D'Amici's conclusions were also not the subject of challenge.
113Given that certain key facts underlying the conclusions of both Mr Zomaya and Mr D'Amici were based on assumptions, we consider that the CIM was entitled to find that the evidence concerning the reconstruction was "unconvincing", and the tests, of, "little value unless all the relevant factors concerning the impact are known and ... are replicated in the tests". The results of tests based on assumed facts are not persuasive of a submission that a considerable force was required to dislodge the beam. The fact that the calculations and conclusions of the two experts were not challenged does not give them any greater efficacy, in the absence of known facts. The accident, on the other hand, was cogent evidence that the beam could be dislodged, fall and injure Mr Mitchell who was in the vicinity.
114The appellant also contends on this issue that the CIM's reasoning process was deficient because it did not take into account Professor Ashley's evidence. That evidence was relied upon by the appellant to show that the beam was adequately secured while resting on its own weight on the brick piers. Professor Ashley's evidence on this issue was to the effect that the beam would not move unless a force not less than 45kg was applied at its end or a force less than 90kg was applied to its centre. Moreover, according to Professor Ashley the beam would not be dislodged unless the force impacted "44 joules of energy into moving the beam". He also said that if both those conditions are not met the beam will remain safely on the piers. Based on those considerations, Professor Ashley concluded that:
... the brick pillars alone are sufficient to adequately secure the beam from being accidentally dislodged during construction, excluding an exceptional event such as striking of the beam with a heavy load.
115In our view, this evidence was of little or no value to the issue under consideration by the CIM, which was whether the respondent had made out a case on any or all of Particulars 1 to 4 in the CAN. Again, the accident amply demonstrated that the beam was not adequately secure because it was able to be dislodged on impact. This evidence as we have emphasised was relevant to the issue of whether Mr Mitchell was exposed to a risk to his safety.
[13]
The defences under s 28
116On the other hand, whether the beam could only be dislodged by an "exceptional event" such as the beam being struck by a heavy load may have been relevant to a defence under s 28, namely, that it was not reasonably practicable for the defendant to have complied with omissions the subject of Particulars 2 to 4. This, in turn, would have necessitated an assessment of whether the risk identified and relied upon by the respondent was reasonably foreseeable. A relevant consideration in that assessment may well have been the qualifications and experience of Mr Mitchell. It appears to have been accepted on the evidence that he was a highly trained and experienced dogman. Other relevant considerations might include that the subcontractors who were considered to be highly qualified would devise an alternative plan that was patently unsafe; and, that Mr Mitchell would, contrary to behaviour expected of an experienced dogman, "get in under the load", as well as physically handle the load.
117In St Hilliers Contracting Pty Ltd v WorkCover Authority (NSW) [2007] NSWIRComm 39; (2007) 162 IR 241, the Full Court extracted from the judgment in WorkCover Authority (NSW) (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd [2001] NSWIRComm 278; (2001) 110 IR 182 at 204ff what it referred to as "the key principles" to be accepted in assessing the evidence relied upon to make out a defence under s 28(a) of the 2000 Act. These were described in Cleary Bros by Walton J, Vice-President, in the context of s 53, the statutory precursor to s 28 (at [87]-[88]):
It is evident from these authorities that what is required by s 53(a) of the Act is a balancing of the nature, likelihood and gravity of the risk to safety occasioning the offence with the costs, difficulty and trouble necessary to avert the risk. At one end of the scale, it could not be reasonably practicable to take precautions against a danger which could not have been known to be in existence: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd (at 362). Similarly, if the happening of an event is not reasonably foreseeable then it will not generally be reasonably practicable to make provision against that event: see WorkCover Authority (NSW) (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381; WorkCover Authority (NSW) v Kellogg (Aust) Pty Ltd (at 259) and Austin Rover Ltd v Inspector of Factories (at 627) per Lord Goff and (at 635-636) per Lord Jauncey of Tullichettle.
At the other end of the scale, there will be cases, such as the present, in which known or obvious risks to safety exist. In these circumstances, the defendant will not have established a defence under s 53(a) of the Act where it was reasonably practicable to have complied with the Act by ensuring that persons were not exposed to those risks. This may be the case because no measures were reasonably available or because measures which were available were not reasonably practicable. As has been discussed, the assessment of the reasonable practicability of those steps requires a balancing of the quantum of the risk 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.
118Immediately after extracting the passage from Cleary Bros the Full Court in St Hilliers observed (at [28]):
It is important to note from this extract that different factors will assume greater or lesser significance in the balancing exercise depending upon their magnitude in the circumstances of each particular case. For example, if there is the potential for serious injury, this factor becomes of greater weight and significance; on the other hand, if the happening of an event is not reasonably foreseeable then it will not generally be reasonably practicable to make provision against that event.
119The CIM dealt with the defence advanced under s 28(a) in the reasons as follows:
The Defendant submits that the Court would find on the evidence that it was not reasonably practicable for the Defendant to have had on the site on the day in question a supervisor or foreman or other person employed by the Defendant who would have been available to observe, direct, induct and warn the injured worker of any hazards at the site. The Defendant had called evidence, including members of its senior management team, which explained the staffing arrangements which had been put in place by the Defendant. The Defendant is a large company engaged in the construction of many residential buildings at any one time and has developed a structure which includes area managers and supervisors. A supervisor may be required to supervise in excess of ten building projects at any given time, and as a consequence the role of the supervisor involved a great deal of driving, moving from one site to another to check on progress and deal with any problems arising before moving on to the next site. Whilst a supervisor might visit each of his projects once a day, it was impossible for a supervisor to be available at any one particular site at all times. Evidence was called as to the financial cost of the Defendant if it were to employ such a supervisor on the basis of one supervisor for each building site. Other evidence relied upon by the Defendant was to the effect that because of the unreliability of suppliers, the Defendant did not require supervisors to be on site to meet deliveries arriving from suppliers as a supervisor given such a task would often find that they would be waiting around for some hours waiting for such deliveries to be effected. As a consequence, it was submitted that it was not reasonably practicable for the Defendant to have an employee in a supervisory capacity at the site on the day of the alleged offence.
I reject this submission. Whilst the Defendant produced some impressive evidence concerning its commitment to occupational health and safety matters, including evidence going to a substantial expenditure on occupational health and safety measures, the staffing arrangements on site constitute a gap in the Defendant's occupational health and safety system. It is not necessary for the Court to find that the Defendant should have had a supervisor on site at all times whilst building work was being carried out. However, the Defendant was aware that it had arranged for Structural Cranes to despatch a Franna crane to the site on the day in question and that the Franna crane would be working in an area where there were overhead power lines. Given those circumstances, it is self-evident in my view that the site in question warranted priority and the Defendant should have had in place a system which ensured that appropriate supervision was available at the site on the day. This would have enabled the subcontractors, including Mr Mitchell, to receive a site induction and would have ensured that the Defendant, through its supervisor, participated in the undertaking of a revised risk assessment and the preparation of a revised safe system of work. I do not accept that it was sufficient for the Defendant's supervisor to be contactable by phone. Whilst the Defendant submits that there was an onus on Mr Mitchell and/or the other subcontracting employees to telephone the Defendant's supervisor, Mr Ballard, and report to him, the fact that the original plan was unsafe, this is no more than a claim that the Defendant was entitled to delegate the entirety of its statutory obligations to its subcontractors. Such a submission is inconsistent with the Defendant accepting that it had any obligation to ensure that the site was safe for persons coming on to it.
120The appellant in the proceedings below had sought to make out a defence under s 28(a) on the basis that the risk that resulted in an injury to Mr Mitchell was not reasonably foreseeable. It also advanced a submission that the risk came to fruition as a result of the conduct of Mr Mitchell as the dogman, supervising the unloading operations. The evidence of Professor Ashley and Mr D'Amici were relied upon to demonstrate that it was not reasonably practicable, "to have measures in place to prevent the steel beam toppling". In relation to this latter point, Professor Ashley was cross-examined in the proceedings below by the respondent about one of the tests conducted by the appellant's experts which had involved the bricking in of the columns in order to show that affixing the beam in some way could effectively result in greater injuries to any person in the near vicinity. Professor Ashley explained:
... if the beam is free to move it can absorb the energy of the motion. For example I think if the frames had been about half their weight and the beam had been free to move it would've been able to, it would've moved and it would've absorbed the energy of the frames before toppling off but it if had been rigidly bolted down, it, even if the frames were about half their weight, it still could've fractured and fallen so you're better off not to restrain the beam in most cases I would say.
121Professor Ashley was also asked in cross-examination if there were other measures available to secure the beam, that is, other than the premise accepted by Professor Ashley that the beam was secure while resting on its own weight on the piers. His response did not suggest any other available measure by which it might be reasonably practicable to have secured the beam:
... Well the sort of things you would have to, I mean, if, for example, you could you know, cover the beam in a couple of cubic metres of foam or something to basically, I mean, what you need to do is reduce the -sorry, increase the time over which the energy of the frames can be absorbed over. So for example if you wrapped the entire beam in metre thickness of foam in all directions then as the frame--
Well any sort of absorbing material to absorb the energy of the incoming frames. I mean, what - the problem is that the frames are very hard and the beam is very hard and that collision causes the fracture. If you can make it softer then that may help but I think you would have to go to, you know, we're talking ridiculous levels I would imagine of surrounding foam in order to make the thing survive--
Q. What about--
A. --that sort of collision.
122The appellant also sought to rely on Mr Mitchell's qualifications and experience as a dogman, as well as his conduct immediately preceding the accident to make out the statutory defence. In oral submissions below the appellant had contended that Mr Mitchell had failed to allow sufficient clearance with respect to the lift he was controlling, and given Mr Mitchell's considerable expertise in that area the appellant was entitled to rely, and had relied, on that expertise expecting that he could, and would, undertake the task safely. During the course of the submission, the appellant also adverted to the evidence of Mr Bleasdale. In submissions on appeal Mr Bleasdale's evidence was set out in detail. It dealt with the duties and responsibilities of a dogman. Mr Bleasdale emphasised that a dogman was not permitted, "to get in under the load", or physically handle the load. The evidence of Mr Martin on this issue, which the CIM accepted, was that Mr Mitchell at the time of the accident was located next to the first load of timber frames which had been deposited in front of the beam and he was endeavouring to square up the load by grabbing it as it had began to twist.
123None of these matters were the subject of consideration by the CIM when addressing the defence provision under s 28(a). Nor was the reasonable impracticability of providing relevant warnings, information, or conducting an induction, or ensuring that no one accessed the area beneath the beam, the subject of separate consideration by the CIM (the measures listed in Particulars 2, 3 and 4). The allegations in those particulars were not referred to specifically by the CIM in his consideration of the defence except insofar as his Honour made findings with regard to whether it was reasonably practicable for the appellant to have arranged for supervision at the site. According to the appellant, the task was undertaken by experienced and expert personnel and an inference was available that, "nothing could have been foreseen" by it that would have necessitated expending time and resources or addressing any difficulties with a view to averting the risk.
124These were matters necessary to be addressed so that proper consideration could be given to whether the appellant had discharged its statutory onus under s 28(a). In saying this, we are mindful that the Local Court is a very busy jurisdiction and it is not necessarily incumbent upon its judicial officers to give full or detailed statements of reasons in every decision. This observation was expressed more fully in Chamberlain v MacLachlan [2003] WASCA 200 (29 August 2003) by Miller J:
The reasons were short and there was only brief reference to the evidence, but it was a case in a Court of Petty Sessions and I respectfully adopt the following observations of Malcolm CJ in R v Nevermann (1989) 43 A Crim R 347 at 350 in relation to the requirements of such reasons in the Court of Petty Sessions:
It is not necessary for a full or detailed statement of reasons to be given in every case. This would not be practicable in a busy court such as the District Court and it would be even less so in a court of petty sessions. The imposition of such a requirement in every case would cause delays in the administration of justice. The reasons may be stated shortly, without being developed in any detail.
125Nevertheless, the CIM was required to give adequate reasons for rejecting the appellant's defence under s 28(a). The importance of this was highlighted in St Hilliers at [22] where the Full Court said:
The defences afforded by s 28 are vital to balance the absolute criminal liability created by the Act and their significance should not be undervalued. They must be given due consideration, and, should the court come to the view that they do not apply, adequate reasons must be given.
[14]
Conclusions and orders
126The course of the first instance proceedings relating to Particular 1 and the CIM's failure to give adequate reasons constituted a denial of procedural fairness which warrants appellate intervention. Accordingly, we would grant the appellant leave to appeal, if it is required, and allow the appeal in relation to the judgments and orders of the CIM of 29 October 2007, 28 May 2008, and 12 November 2008. The appeal with regard to the CIM's decision of 22 June 2007 will be dismissed.
127On the question of appropriate relief the appellant submitted that this Court is not in a position to impose its own views because of a significant body of evidence that was either not evaluated or not properly evaluated. We note that the Full Court in St Hilliers , having found that the learned Magistrate below failed to give proper consideration to St Hilliers' submissions concerning the availability of defences under s 28 proceeded to determine the issue without recourse to a retrial: at [22]-[23]. The Full Court's decision to proceed to determine the issue for itself was based upon the uncontentious nature of the factual findings at first instance and the fact that St Hilliers had expressed a preference for this mode of disposition of the appeal.
128In its amended application to this Court the appellant claims the following alternative relief:
2A That the Court remit the proceedings to the Court below for a further hearing according to law.
129In the present proceedings, given the appellant's view that the Court is not in a position to determine the matter for itself, we do not propose to adopt the course taken by the Full Court in St Hilliers . As for whether there should be a re-hearing, there are several factors that militate for and against this as a form of appropriate relief.
130The offence occurred on 26 October 2004, a delay in excess of six years. Any re-hearing of the matter will occasion further delay, although perhaps not so substantial as to militate against orders made for a re-hearing.
131The case against the appellant appears to be relatively strong. A key factor in assessing whether a matter should be referred back for a re-hearing is the "public interest in the due prosecution and conviction of offenders": R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 at 254.
132A factor against referring the matter back concerns the necessity to observe procedural fairness not only in the trial process but also with regard to the question of appropriate relief: Lorenzo and Santos at [91]. In these proceedings the appellant sought, unsuccessfully, on several occasions to obtain further particulars of the allegations in the CAN. As we earlier observed, the failure on the part of the respondent to provide the particulars placed the appellant at a significant disadvantage in meeting the respondent's case and this disadvantage constituted a procedural unfairness in the conduct of the proceedings below.
[15]
Orders
133Taking into account these factors, we make the following orders in disposing of the appeal:
(1) Leave to appeal, if required, is granted.
(2) With regard to the Decision of Chief Industrial Magistrate Hart of 22 June 2007, the appeal is dismissed.
(3) Otherwise, the appeal is allowed and the conviction and sentence of the appellant by Chief Industrial Magistrate Hart of 29 October 2007, 28 May 2008 and 12 November 2008 are set aside.
(4) The matter is remitted to the Local Court to determine according to law.
(5) The respondent shall pay the appellant's costs of the proceedings below and the appeal.
[16]
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: 18 October 2013
Insofar as your reliance on Fernz' case is concerned, we are of the view that that decision must now be read in the context of the Court of Appeal's decision in Kirk Group Holdings Pty Limited v. WorkCover Authority of NSW 2006 NSW CA 172, paras 101 and 102.
Accordingly, would you identify with precision the manner by which it is alleged the beam ought to have been adequately secured.
39The respondent responded to this second request by letter of 18 May 2007 as follows:
We do not agree with your observations in your letter. We certainly do not agree that the Judgment in Kirk Group Holdings Pty Limited v WorkCover Authority [2006] NSWCA 172 in any is relevant to the purported particulars you have sought. Despite our view and in order to avoid any further arguments over the issue we provide you with the following information in answer to the request made in your letter of 28 February 2007.
The facts and matters relied upon to assert that the defendant failed to adequately secure the beam in position are those that are generally set out in the Statement of Facts that is found at Tab 2 of the brief. In particular, the prosecution relies upon the facts set out in paragraphs 16 and 19.
The manner in which the beam ought to have been adequately secured is by any means that would have ensured that it could not or did not fall from the position where it was to the ground so as to put at risk the health and safety of anyone who might be standing in its line of fall.
We note in your letter of 5 April 2007 you have not complained about the answer in our letter of 16 March 2007.
40In Trade Practices Commission v Total Australia Limited (1976) 24 FLR 413, which was the first authority to which the respondent's attention was directed in the appellant's second letter, civil proceedings had been commenced against the defendant claiming a breach of s 47 of the Trade Practices Act 1974 (Cth). The section prohibited exclusive dealing but s 47(5) limited the prohibition where conduct was, "likely to have the effect of substantially lessening competition in a market for goods and services". The defendant sought further particulars of the allegation in the plaintiff's statement of claim concerning the likely effect of the conduct in substantially lessening competition in the market. Joske J rejected the defendant's application for particulars on the basis that it was seeking to ascertain the evidence upon which the plaintiff intended to rely in order to prove its case, but in doing so, his Honour also adverted to matters which would constitute a proper request for particulars (at p 417):
... While the defendant is entitled to know the case it is called upon to meet, it is not entitled to be told the evidence that will be called to prove the case. A defendant is entitled to ask for the material facts upon which the plaintiff will rely and he may make his request for the facts and matters relied on, which is taken to mean the same thing. ...
41The respondent was therefore on notice that the appellant's request to identify the "facts and matters" on which the prosecutor proposed to rely was a legitimate request for particulars which required an answer.
42The second authority to which the respondent's attention was directed by the appellant in its letter of 5 April 2007 was Kirk Group Holdings Pty Limited v WorkCover Authority of New South Wales [2006] NSWCA 172; (2006) 66 NSWLR 151. In the judgment, Basten JA (with whom Spigelman CJ and Beazley JA agreed) emphasised the importance of identifying in a charge the particular "actions" which should have been taken, but were not, and the importance of identifying with precision the relevant omissions in the context of an offence of absolute liability where a defendant is dependant upon establishing a defence. At [101]-[102] (the two paragraphs to which the respondent's attention had been specifically directed) Basten JA said:
To speak of a failure to provide "systems of work" that were safe and without risks to health is of no assistance in identifying particular actions which should have been taken and were not. The same may be said of the failure to provide "such information, instruction and training as may be necessary" to ensure health and safety at work. The failure to identify the relevant omissions with precision is likely to be of particular importance in circumstances where, in accordance with the jurisprudence of the Industrial Court, the offences are "absolute" and the opportunity for a defendant to escape conviction will be largely dependent upon establishing a defence under s 53 of the OH&S Act 1983, which, at least in part, required the identification of steps which might have been taken in order to comply with the absolute obligation, but are said not to be reasonably practicable.
The lack of content in the particulars is significant in another respect. If the obligation to obviate risks to health and safety is absolute, it may be of assistance to the Court to know how the steps, the omission of which is relied on by the prosecutor, were said to have been capable of obviating the relevant risk. Furthermore, to be able to defend itself, the employer might wish to know what was the precise "risk" which was said to exist in relation to the use and operation of the ATV.
43Contrary to the respondent's response of 16 March 2007 and 18 May 2007, the Court of Appeal judgment in Kirk was undoubtedly of relevance to the appellant's application for further particulars, Basten JA having sought to emphasise the importance, in particular, of identifying "actions" which should have been taken but were not.
44The respondent, in its letter of 18 May 2007, directed the appellant to two paragraphs in a Statement of Facts which it was said, "generally set out" information about the "facts and matters" upon which the respondent intended to rely to prove the allegation in the CAN that the appellant had failed to, "adequately secure the beam in position".
45A Statement of Facts was tendered by the appellant during interlocutory proceedings before the CIM in which the appellant sought by way of formal application to obtain the particulars it had requested unsuccessfully from the respondent. This document did not find its way into the Appeal papers. It was, however, referred to on a number of occasions during the substantive proceedings below. After the prosecution's opening, counsel for the appellant referred to paragraph 16 of the document purporting to read at least part of its contents onto the record:
At para 16 this is the proposition. As one of the packs of frames was being lifted into a position on the upper level it struck the beam, dislodging it and causing it to fall to the ground. That's the facts and matters that they're relying on. There is a proposition as a result there were injuries suffered. There's the observation that it was lifted back into place. Then there's another proposition which was irrelevant. They're the facts and matters. And then in that context there is a suggestion of the manner, and the manner is that it not fall. When one looks at and considers the facts and matters that they have relied on and consider the manner in which it would not fall.
46The letter of 18 May 2007 also informed the appellant that, "the manner in which the beam ought to have been secured" was "by any means that would have ensured that it could not or did not fall from the position where it was to the ground". This response suggested that the focus of the allegation was on a failure to secure the beam so that it did not fall from its position on the brick piers. When considered with Particular 1, the allegation would, on any reasonable analysis, be understood to be confined to a measure of securing the beam on the brick piers, that is, "in position". As the procedural background will shortly establish, the prosecution was in fact relying on two measures to make out Particular 1.
47The responses were unsatisfactory especially when regard is had to the provision under which the appellant had been charged. Section 8(2) has long been held to impose general duties or obligations. The offence is one of absolute liability, subject to any relevant defences. Once the prosecution proves its case beyond reasonable doubt, the onus falls on a defendant under s 28(a), for example, to prove on the balance of probabilities that it was not reasonably practicable to comply with the provision.
48In Shannon v Comalco Aluminium Ltd (1986) 19 IR 358, the New South Wales Commission in Court Session, as it was then known, described the nature of the duty under s 15(1) of the OHS Act 1983 (substantially reproduced in s 8(1) of the OHS Act 2000). At 359 of the judgment, the Full Bench (Fisher P, Cahill and Glynn JJ) said:
Section 15(1) is a general provision establishing a far reaching obligation upon the employer and imposing a duty in absolute terms. Section 15(2) spells out with particularity the heads or particulars of that absolute duty without in any way cutting down its rigour.
49This statement has been accepted in subsequent judgments of this Court as accurately reflecting the function and operation of the provision. The obligation is expressed in substantially similar terms under the relevant provisions of the OHS Act 2000, for example, s 8(1) and s 8(2). The High Court in Kirk recognised that the obligations or duties imposed upon employers under s 15 or s 16 of the OHS Act 1983 were generally stated and absolute, delimited (only) by the terms of the defences under s 53 (now s 28 of the OHS Act 2000)): at [10], [12], [18].
50In Newcastle Wallsend Coal Company Pty Ltd v WorkCover Authority (NSW) (Inspector McMartin) [2006] NSWIRComm 339; (2007) 159 IR 121 at [214], the majority, Boland J, President and Walton J, Vice-President collected authorities which established that offences under s 15 and s 16 of the OHS Act 1983 were offences of absolute liability:
Although the issue was not raised by either party in these proceedings, it is pertinent at this juncture to comment briefly upon one other matter of principle: the absolute nature of liability under ss 15 and 16, referred to in remarks by Basten JA in Kirk Group Holdings Pty Ltd v WorkCover Authority (NSW) (2006) 154 IR 310 at [146]. While there has been, at times, variance in the language used, the settled authority of this court plainly establishes that liability is absolute as the Full Bench observed recently in Kirk Group Holdings Pty Ltd v WorkCover Authority (NSW) (Inspector Childs) [2006] NSWIRComm 355 at [49]. (See also Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467; Drake Personnel Ltd (t/as Drake Industrial) v WorkCover Authority (NSW) (1999) 90 IR 432 at 449; WorkCover Authority (NSW) v Coffey Engineering Pty Ltd (No 2) (2001) 110 IR 447 at [16]-[17]; Ridge Consolidated Pty Ltd v WorkCover Authority (NSW) (2002) 115 IR 78 at [32]; WorkCover Authority (NSW) v Weathertex Pty Ltd (2003) 127 IR 60 at [58]; Morrison v Powercoal Pty Ltd (2004) 137 IR 253 at [97]; WorkCover Authority (NSW) (Inspector Franke) v Amer Kanawaty [2005] NSWIRComm 361 at [45]; Daly Smith Corporation (Aust) Pty Ltd v WorkCover Authority (NSW) (2006) 151 IR 173 at [33]; WorkCover Authority (NSW) (Inspector Schultz) v Hoffman's Kundabung Sawmilling Pty Ltd (2006) 155 IR 416 at [54]; and WorkCover Authority (NSW) v Rockdale Beef Pty Ltd (2006) 155 IR 366 at [148]). This stems from the unconditional, objective nature of the liability (see Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 470; State Rail Authority (NSW) v Dawson (1990) 37 IR 110 at 120-121; Kirkby v A & MI Hanson Pty Ltd (1994) 55 IR 40 at 50; ABB Power Transmission Pty Ltd v WorkCover Authority (NSW) (Inspector Wilson) (unreported, Industrial Relations Commission (FC), NSW, Matter No CT 1215 of 1996, 2 May 1997); [1997] NSWIRComm 60; Ferguson v Nelmac Pty Ltd (1999) 92 IR 188; WorkCover Authority (NSW) v Police (NSW) (No 2) (2001) 104 IR 268 at [20]; and McMartin v Broken Hill Proprietary Co Ltd (1988) 100 IR 241); the exclusive nature of the defences available under s 53 (allowing no countervailing defence of honest and reasonable mistake of fact - see, for example Kellogg (No 1) at 259 and Inspector Wolf v Rockdale Beef Pty Ltd at [147]); and the important social purposes of the Occupational Health and Safety Act and its successor, discussed by the Full Bench in WorkCover Authority (NSW) v T & Y Pty Ltd (2005) 146 IR 458 at [7]; Beacham v Interface Manufacturing Pty Ltd (2005) 141 IR 416 at [27]; WorkCover Authority (NSW) v Flexible Packaging (Australia) Pty Ltd (2005) 144 IR 385 at [2]; and T and M Industries (Aust) Pty Ltd v WorkCover Authority (NSW) (2006) 151 IR 130 at [77]). (For a detailed discussion of the distinction between absolute and strict liability offences, see, for example, R v Wampfler (1987) 11 NSWLR 541 at 546; Griffn v Marsh (1994) 34 NSWLR 104 at 114-117; He Kaw Teh v The Queen (1985) 157 CLR 523 at 529-530; Binskin v Watson (1990) 48 A Crim R 33; Von Lieven v Stewart (1990) 21 159 IR 121] NEWCASTLE WALLSEND COAL v WORKCOVER (Walton J, VP, 205 Boland J) 214 NS WLR 52; Principles of Criminal Law , S Bronitt and B McSherry, 2005, Lawbook Co at 189-190; and Criminal Defences , D O'Connor and PA Fairall, 3rd ed, Butterworths, 31-71).
51Recent cases which may be added to this line of authorities include: Rail Infrastructure Corporation v Page [2008] NSWIRComm 169; (2008) 179 IR 398 at [101]; Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123; (2008) 182 IR 124 at [291].
52In Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467, Watson J referred to the inter-relationship between s 15(1) as an offence of absolute liability and s 53 of the OHS Act 1983 (at 470):
In their context and purpose, there would appear to be no reason to make any implication that the words "to ensure" are to be construed in any way other than their ordinary meaning of guaranteeing, securing or making certain.
That context includes s 53. That section does not simply reverse any onus which might otherwise fall on the prosecution under s 15(1). Rather, s 53 affirmatively expresses and delimits defences not otherwise open under s 15(1). It makes clear at the same time that those defences are to be proved by the person against whom the proceedings are instituted.
53Carrington Slipways was the first case decided under the OHS Act 1983. The proposition that the only defences to an offence under s 15(1) were the two statutory defences set out under s 53 found its first expression in that case.
54When the general obligation which is imposed on an employer is considered with the requirement upon a defendant to establish, on the balance of probabilities, either one of two statutory defences under s 28, the importance of providing a clear and precise statement of the measures by which the prosecutor alleges a relevant failure has occurred, becomes obvious. Without a clear and precise statement of the measures not taken a defendant would face, "the additional burden of anticipating and negating the practicability of every possible means of avoiding or mitigating a risk or accident ...": Chugg v Pacific Dunlop Pty Ltd [1990] HCA 41; (1990) 170 CLR 249 at 263. (The observations made in Chugg v Pacific Dunlop concerned whether s 21 of the Occupational Health and Safety Act 1985 (Vic) placed the onus of proof, in relation to practicability, on an employer where the provision provided that an employer provide a safe working environment, "so far as is practicable".) To similar effect, the majority in Kirk , after referring to the onus on a defendant to satisfy the court on the balance of probabilities that it was not reasonably practicable to take the measure in question, said, "[s]uch a defence can only address particular measures identified as necessary to have been in the Statement of Offence" (at [16]).
55Having failed in its initial attempts to extract the particulars from the respondent by informal process, the appellant applied formally by way of a Notice of Motion to the Local Court to obtain the particulars asked for in the letters dated 28 February and 5 April 2007. The application came on for hearing before the CIM. During oral submissions before the CIM the prosecution contended that the particulars supplied to the defendant were sufficient and in conformity with the remarks made by Basten JA in Kirk (Court of Appeal) at [101]. Particular 1, it was said, defined the measure not taken, namely, "you should have secured the beam in place but did not". The prosecution's intended case, it was explained, was:
The Prosecutor's case, and in respect of the beam, and it has not been cute about this in anyway whatsoever, you failed to secure it or you failed to adequately secure it and adequately must be understood as is made clearly in the particulars to mean, to secure it in a way so that it would (sic) fall and perhaps even more particularly, fall on someone underneath it.
56The appellant appeared to be reasonably content with that formulation contending, during and at the end of its submissions:
... Firstly your Honour, the Defendant is relieved to a certain extent now that it has been explained by the Prosecution what was meant in their answer to the first request for particulars.
They are not reserving some right to go beyond the area of identified matters but simply to call evidence with respect to those identified matters to establish them.
...
Your Honour, that was not clear in the answer that was provided to us and it has only been made clear this morning.
So, to that extent, the Defendant is not required, I think in the course of these proceedings to press for further answer to Particular one now that has been appropriately explained by the Prosecution.
I might add, your Honour, if that would have been the terminology adopted by my learned friend today, would have been advised to us prior to the creation of the Notice of Motion, that matter no doubt would not have been pursued.
...
We no longer need to press the first particular sought, just to make that clear, your Honour, now that my friend has clarified the Prosecution's position on that. Nothing further your Honour.
57In an extempore decision in which the CIM dismissed the Notice of Motion, the appellant's application was considered against the prosecution's earlier response to the request for particulars, namely that the means to appropriately secure the beam was "any means" which would prevent the beam from falling. According to the CIM, the means or method to be adopted to secure the beam, "is not a matter which the Prosecutor must prove in its case to establish a breach of the Act".
58According to the appellant the CIM fell into error by failing to order the respondent to provide further particulars with regard to Particular 1. We do not agree. The focus of Particular 1 during the hearing of the appellant's Notice of Motion was on the alleged omission or measure not taken by the appellant to secure the beam "in position" on the two brick piers. At that stage of the proceedings, the appellant's responses to the respondent's submissions indicated that it understood the allegation underpinning Particular 1 and it no longer needed to press its application with regard to that Particular.
59The CIM was also correct to point out during the hearing of the preliminary application that the "means" or "method" which might be adopted for securing the beam were not matters upon which the respondent bore an onus. That being so, there was no requirement upon the respondent to particularise in the CAN the means through which the measure or measures could or might be achieved. The respondent was required to provide sufficient information in the charge so that the appellant knew what it was it had failed to do and should have done: John Holland (Court of Appeal) at [140] per Giles JA. This general proposition does not foreclose the possibility that there may be circumstances arising out of the nature of the evidence or the conduct of the proceedings where fairness demands that a defendant be provided with further particulars: see by way of analogy Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 A Crim R 481 at 484 per Gleeson CJ.
60The distinction between a measure and the means or method of achieving the measure was adverted to by the Full Court in Morrison v Chevalley [2010] NSWIRComm 116; (2010) 198 IR 30. It emerged during consideration of whether it was necessary to plead the relevant act or omission of a director in a charge brought against the director under s 8(1) by virtue of s 26(1) in order that he or she may understand how to frame a defence under s 28. The Full Court considered that it was not necessary (at [87], [95], [96]). On the distinction between "measures" and "means" the Full Court said (at [135]):
The defendants, however, submit that the decision of the High Court in Kirk requires that the directors, in these cases, also be informed of what means they should have adopted to address the measures that were not taken by the corporation. This approach would require the prosecutor to instruct the directors as to which safety body he may have directed instructions to or to specify what provider of services he may have engaged to ensure that there was an adequate berm or road design that prevented coal trucks from running off the steep mine road. This approach misunderstands the structure and proper construction of s 26 as already discussed. Section 26 is concerned with the contravention of a corporation. When there is shown to be such a contravention, each director (or person concerned in the management of the corporation) "'is taken to have contravened 'the same' provision unless one of the defences specified in [a] or [b] is made out. Both defences are drawn by reference to the 'contravention' by the corporation - not by reference to some other conduct or omission of the directors. If the corporation failed to have a berm of sufficient size to prevent a coal truck from running off the mine road, then that is the measure that the defendant directors failed to take. This particular satisfies the Kirk requirements. Just as the prosecutor is not obliged to instruct the corporation of the method or entity by which such a berm might or should have been constructed, neither is the prosecutor obliged to inform the directors of such methods or entities. The directors answer may be that such a berm could not have been safely erected or erected at all for geological and/or engineering reasons but that possibility does not detract from or render invalid the particularisation provided by the prosecutor in these matters - those possible difficulties (if they arise) are matters for the trial.
61On 29 October 2007, the matter came on for hearing before the CIM. In its opening the prosecution outlined its case with regard to Particular 1 in the following way:
The first is a failure to adequately secure the beam in position and that particular focuses upon the risk that was posed by the unsecured beam being at height and having the prospect of falling. Of course, if it was failsafe, secured by say, for example, nuts and bolts and I put that colloquially, or alternatively secured by lying on the floor where it could not fall, the risk wouldn't have emerged.
62The respondent's case with regard to Particular 1 as described in the opening differed fundamentally from its earlier particularisation. The CAN, on its face, contemplated that the beam was not secured "in position", that is, two metres above the ground on the brick piers. The allegation that the beam was not secured by placing it on the ground constituted a new particular not the subject of earlier particularisation. The respondent moreover placed reliance on this new allegation to make out Particular 1. In closing submissions the respondent said:
The prosecution was invited before trial and again during the trial to further particularise this aspect of the charge. The prosecutor articulated the particular by informing the defendant that the steel beam was to be secured 'by any means that would have ensured it did not fall from height'. The prosecution opened the case that way (T1 5.30-40) although it had informed the defendant that that was the case before trial (see the discussion at T1 30.20-34.12). Securing the beam was to be achieved either by making certain it could not have fallen from its position (T1 34.40) or by not having it up high at all (T1 34.41). The steel beam could have been secured by laying it on the ground or having it elsewhere.
...
It is clear from the evidence that the steel beam was not secured either to the top of the brick pillars or in some other way.
...
Further, the steel beam could have been secured in the manner particularised (by placing it in such a position so as to make sure it did not fall on Mitchell) by simply placing it on the ground or somewhere else so that it simply could not fall. It is important (both to the particular and to the defence that the defendant might ultimately rely upon) to remember that, on the defendant's own evidence, there was simply no need for the beam to be on top of the brick pillars on the day at the time immediately before it fell.
...
... had the steel beam been on the ground or off the site or affixed up high in such a manner that it could not have fallen there would have been no risk to Mitchell. There is no evidence before the Court in terms of time, money or expense (or some extravagant level of ingenuity) that would suggest that having the beam other than where it was could not have been reasonably achieved. Indeed removing the beam to the ground or away from where it was does not appear to have been something that could not have been done and would have secured it so that it presented no risk at all to anyone.
...
... The defendant has led no evidence that it would have been expensive and time consuming to remove the beam from where it was high up in the sky.
63Shortly after the opening, the appellant raised its concerns that the prosecution was intent on prosecuting an entirely new case with regard to Particular 1, which was different from that which had been earlier particularised. The appellant complained that until the prosecution had opened on Particular 1, its case had always been advanced "in the context of ... securing the beam ... by any means in position on top of the brick piers", which did not contemplate securing the beam by placing it on the ground. The appellant contended that the respondent ought be bound by its earlier particularisation since if it had intended to rely upon "this second leg" to make out Particular 1 the appellant should have been notified of this from the outset. The appellant also sought to rely on paragraphs 16-19 of the Statement of Facts that had been provided earlier to it by the respondent. The appellant relied in particular on paragraph 16 as focussing on the manner in which the beam would not fall. The appellant also sought to explain that it had not pressed its earlier requests for further particulars with regard to Particular 1 because, "it was made clear that there would not be any reliance on some other general matters ... other than those contemplated in the statement of facts in paragraphs 16-19. They don't contemplate things or beams being placed on the ground".
64The respondent submitted that its case was unchanged because it had consistently alleged that the beam could have been secured "by any means" so that it did not fall from its position, "where it was to the ground".
65According to the CIM the prosecution was required to supply enough information to the appellant so that it understood the case it had to meet but the requirement in order to be met did not extend to setting out "all possible alternative ways in which the risk have been eliminated or controlled". His Honour made the following additional observations:
If the beam had been on the ground it could have represented a hazard to someone who could have stubbed their toe on it or driven a vehicle over it. They could have had all sorts of difficulties with the beam being on the ground and it is quite clear that the prosecutor does not in any way rely on such a risk in these proceedings. It relies only on the beam in the sense that it was a hazard because there was a risk that it would fall. That's the only aspect of the beam that they come to the court with.
What they don't have to do is make a list of all the ways in which the defendant might have eliminated or controlled that risk. It is obvious that one way would have been to secure it so that it couldn't have been knocked from its position, and another way would have been not to have it there at all. They could have had it lying on the ground or they could have had it in a warehouse somewhere. They could have had it at someone's house. There's 101 things they could have done with the beam which would have stopped it from falling. The prosecutor doesn't have to enumerate all of those. That's all Mr Reitano said today. He said it could have been secured or it could have been on the ground.
But they don't change the nature of the risk that we're looking at. We're looking at the beam as a hazard because it could fall and strike someone, not because it was on the ground and you could stub your toe on it or anything like that. you don't have to worry about that. They have not in any way particularised any risk in relation to the beam other than the risk associated with it being able to fall and strike someone. That's what has been particularised, and I thin kit has been particularised adequately.
66The respondent on appeal sought to characterise the new particular as another "means" whereby the beam could have been secured in position on the piers. We cannot agree. There is no logical connection between a "means" for securing the beam by placing it on the ground and a "means" for securing the beam in position on the brick piers. To illustrate the point, tying the beam or bolting it to the two brick piers might constitute two possible means of securing it in position on the two brick piers. In contrast, placing it on the ground could not, on any rational construction, constitute a means of securing the beam in position on the piers.
67The CIM's remarks extracted above indicate, in our opinion, that his Honour did not properly take account of the conceptual shift that had occurred in the prosecution's case with regard to Particular 1. The new particular constituted a new and independent measure, not as the respondent sought to characterise, one of several means by which the measure of securing the beam "in position" on the piers could be achieved. The introduction of another measure by which the beam could be secured had taken the appellant by surprise and potentially placed it at a disadvantage in terms of raising a defence based on the reasonable impracticability of securing the beam by placing it on the ground. Particular 1 in its final version was comprised of two mutually exclusive constituent parts. Until the prosecution's opening, the appellant had proceeded upon an understanding that the omission relied upon to make out Particular 1 was confined to one measure that should have been taken to secure the beam in its position on top of the piers. It was redefined during the opening when it emerged for the first time that the prosecution was also relying on an additional measure to make out the Particular.
68Particular 1 as drafted incorporated one measure which was, in our opinion, sufficiently certain in its terms to satisfy the requirements of a valid charge. The introduction into Particular 1 of the notion that the beam should have been in a position other than resting unsecured on the two piers, by placing it on the ground, made the CAN ambiguous and uncertain. In addition, the respondent had not at any stage prior to the substantive hearing sought to disabuse the appellant of that notion. Consequently, the appellant had not had the opportunity prior to the hearing to prepare a defence that it was not reasonably practicable for it to have secured the beam by placing it on the ground. Its expert reports, which had been filed and served on the respondent prior to the hearing, focussed on the impracticability of securing the beam in position on the two brick piers.
69The disadvantage under which the appellant had been placed in order to meet what was effectively a new case presented by the prosecution during its opening was apparent during the course of the proceedings. The CIM, in the judgment of 28 May 2008, remarked that evidence led by the appellant which was intended to constitute a reconstruction of the beam being struck in conditions replicating those prevailing at the site on the day of the accident, "did not address the question of why the steel beam was up in the air ... and the placement of the steel beam at ground level or in some other location is simply not addressed by the defendant".
70The introduction of the measure at such a late stage of the proceedings, over objection, visited an unfairness on the appellant. Not only did the respondent fail to notify the appellant about the new allegation prior to the proceedings, the respondent had consistently characterised the case with regard to Particular 1 on a basis fundamentally different from the case presented at the hearing. This was despite repeated attempts on the appellant's part to obtain particulars. We can see no good reason, nor has one been advanced, why the respondent could not, at an earlier stage, have informed the appellant of its intention to allege that the manner in which the beam was unsecured would include the notion that it could have been placed on the floor or on the ground. The CAN was not amended by the respondent to reflect the new allegation and the appellant was not afforded the opportunity, given the late notification, to properly consider the new allegation and its impact on the defences it intended to raise.