Appeal - Occupational Safety and Health Act 1984 (WA), s 22 - Whether respondent was a person in control of the workplace - Whether the respondent took measures as were practicable to ensure that workmen were not exposed to hazards

Occupational Safety and Health Act 1984 (WA), s 3 s 22

Official Prosecutions (Accused's Costs) Act 1973 (WA), s 5

Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249

Hamersley Iron Pty Ltd v Robertson, unreported; SCt of WA (Steytler J); Library No 980573; 2 October 1998

McMillan Britton & Kell Pty Ltd v Workcover Authority (NSW) (1999) IR 464

Silent Vector Pty Ltd v Shepherd & Anor [2003] WASCA 315

Workcover Authority of NSW (Inspector Callaghan) v Rowson, MG & RM [1994] NSWIRC 76

Workcover Authority of NSW (Inspector Page) v Woolworths Ltd [1994] NSWIRC 95

Bunnings Forest Products Pty Ltd v Shepherd, unreported; SCt of WA; Library No 980235; 5 May 1998

Cullen v State Rail Authority (NSW) (1989) 31 IR 207

Ertech Pty Ltd v Reid, unreported; SCt of WA; Library No 9174; 6 December 1991

Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100

Kirkby v A&MU Hanson Pty Ltd (1994) 55 IR 40

Leighton Contractors Pty Ltd v Ridge, unreported; SCt of WA; Library No 980650; 23 November 1998

Morrison v Competitive Foods Ltd t/as Hungry Jacks, unreported; SCt of WA; Library No 9118; 25 October 1991

R v Australian Char Pty Ltd [1999] 3 VR 834

Romeo v Conservation Commission of the Northern Territory (1988) 192 CLR 431

Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304

Tenix Defence Pty Ltd v MacCarron [2003] WASCA 165

1 LE MIERE J: In June 2001 the City of Mandurah issued a building licence to the respondent and his wife authorising them to construct a new house on land owned by them in Mandurah. The respondent was then employed as a manager by a company that designed control systems, mainly for the oil and gas industry. The respondent holds a Diploma in Management and has previously worked as a project manager and a licensed electrician. He had built a house as an owner builder some 10 years earlier.

2 In or about May 2002 the respondent engaged Watervale Investments Pty Ltd to install plaster walls and ceilings on the ground and first floor of the house. Watervale is a company carrying on business installing walls and ceilings.

3 On 28 October 2002 the partially constructed house was at lock-up stage. On that date there was no stairwell between the ground floor and the first floor. There was a void between the ground floor and the first floor measuring approximately 2 metres x 2 metres and approximately 3 metres above the ground. The void was where a staircase would eventually be located between the ground floor and the first floor. There was no guarding or edge protection along the edges of the void and the void was not obstructed to prevent access from the ground floor to the first floor. The respondent made arrangements with Watervale for Watervale workers to attend the house on 28 October 2002 to perform the plastering work on the first floor in accordance with the agreement between the respondent and Watervale. At or before approximately 7 am on that day, the respondent went to the house on his way to work in order to unlock the back door of the house so that Watervale's workers could gain access to the inside of the house in order to perform the plastering work on the first floor.

4 Two ceiling fixers employed by Watervale, Charles Timothy Burton and Peter Cleaver, were instructed by David Roy Stewart, a director of Watervale, to attend the house and carry out the work to the first floor ceiling of the house. In the course of working on the first floor Mr Cleaver was walking sideways towards the void and looking up with a scraper in his hand. He stood with his foot on the edge of the void, rolled his ankle and then fell through the void. Mr Cleaver fell approximately 3 metres before striking the left side of his head and losing consciousness for about two minutes. He was taken to Peel Health Campus and subsequently Sir Charles Gairdner Hospital. Mr Cleaver sustained a significant right-sided cerebral injury that left him with a permanent disability.

5 The respondent was charged that, being a person in control of a workplace, he failed to take such measures as were practicable to ensure that persons at the workplace were not exposed to hazards and by that failure caused serious harm to Mr Cleaver, contrary to s 22(1)(a) and s 22(5) of the Occupational Safety and Health Act 1984 ("the Act"). On 26 May 2005, after a trial in the Magistrates Court, the Magistrate acquitted the respondent of the charge. The Magistrate also made an order that pursuant to s 5 of the Official Prosecutions (Accused's Costs) Act 1973 a Certificate of Costs was to issue in favour of the respondent.

6 A Judge of this Court subsequently granted the appellant leave to appeal against the decision of the Magistrate on two grounds. Before considering those grounds of appeal I will outline the decision of the Magistrate.

7 The Magistrate stated that the prosecution must establish that the partly completed building was a workplace that the respondent had control of, that the respondent failed to take practical measures as required by the Act and that failure to take such measures caused serious harm to Mr Cleaver. The Magistrate reviewed the evidence. Her Honour then stated that two major issues arose in the case. The first issue was whether the respondent was a person in control of the workplace. The second issue was whether the respondent took such measures as were practicable to ensure that workmen, including Mr Cleaver, were not exposed to hazards at that workplace.

8 The Magistrate found that the respondent did not have control of the workplace where Mr Cleaver and Mr Burton were working because the respondent did not have the power to direct the activities of those workers at the workplace.

9 The Magistrate then went on to find that the respondent did not fail to take such measures as are practicable to ensure that persons at the workplace were not exposed to hazards. The Magistrate reached that conclusion, having regard to the following matters. The hazard, that is the unguarded void in the first floor, was an obvious one and was not one which only the respondent could be expected to know about and take practicable steps in relation to. The hazard was visible and the risk of injury would be foreseeable to almost anyone on site. The workers took some steps to remove or reduce the hazard and it was reasonable for the respondent to have left that issue of the hazard created by the void, which he had not been specifically requested to address, to the subcontractor, Watervale. The respondent was not a professional builder. The respondent did not ask Watervale whether he needed to provide any railing or planks for the void and the subcontractor did not tell him he had to address the issue. The respondent was not present at the workplace on a daily basis. The respondent believed, after conversations between himself and Mr Stewart, that the subcontractor would attend to whatever would be required by them to complete the job with safety.

10 Ground 1 of the appeal is that the Magistrate erred in law in finding that the respondent was not a person in control of a workplace within the meaning of s 22 of the Act because the respondent did not have the power to direct the activities of workers at the workplace and in failing to find that the respondent was the person in control of the workplace within the meaning of s 22 of the Act.

11 The respondent submitted to the Magistrate, and again to this Court, that the respondent relinquished control of the house to Watervale whilst the works performed by Watervale were being undertaken. In that sense, it was submitted, there was a shifting of control as adverted to in the decisions of Workcover Authority of NSW (Inspector Callaghan) v Rowson, MG & RM [1994] NSWIRC 76 and McMillan Britton & Kell Pty Ltd v Workcover Authority (NSW) [1999] NSWIRComm 80; (1999) 89 IR 464. The learned Magistrate did not accept that submission. Her Honour found that the respondent did not relinquish control of the premises to Watervale.

12 Sub-section 22(1) of the Act imposes a duty on a person who has "to any extent" control of a workplace as defined. The qualification of control imported by the words "to any extent" should not be read as confined to a multiplicity of control but naturally extends to cover various degrees of control: see Workcover Authority of NSW (Inspector Page) v Woolworths Ltd [1994] NSWIRC 95.

13 In McMillan Britton & Kell Pty Ltd v Workcover Authority (NSW) (supra) the Full Bench of the Industrial Relations Commission of New South Wales referred to s 17(1) of the Occupational Health & Safety Act 1983 (NSW) which was in similar terms to s 22 of the Act. The Full Bench said:

"The importance of the decision in Rowson was that it emphasised the high standard of care required by s 17(1) [of the Occupational Health and Safety Act 1983 (NSW)] by its use of the words 'shall ensure' so as to qualify the nature of the 'control' to which the section was directed. The decision has significance also in illustrating the shifting of 'control' in a total sense, and thus shifting the liability to ensure safety, from one person to another where control arises under s 17(2) [of the Occupational Health and Safety Act 1983 (NSW)] from a contractual obligation.

It is worth repeating, we think, that the obligation cast on relevant persons to 'ensure' the safety of others is indeed strict and necessarily of a high standard ...

The obligation imposed by s 17(1)(b) [of the Occupational Health and Safety Act 1983 (NSW) Act] on the appellant to ensure the plant was safe and without risks to health is to be so viewed and as assisting in the determination of whether it had at the relevant time the requisite degree of control over the subject plant as would make it liable. In other words, the proper operation of the section requires, in our view, the degree of control which a defendant has over plant or substances or non-domestic premises, as the case may be, to be to the extent to which that person is able to ensure safety by guaranteeing, securing or making certain. For that reason, the applicable meaning of 'control' in the context of s 17 [of the Occupational Health and Safety Act 1983 (NSW)] by reference to its ordinary meaning as earlier outlined, must, it seems to us, have about it the sense of not mere 'sway', 'checking' or 'restraint' but rather controlling in the sense of 'directing action' or 'command' - the ability of a person to compel corrective action to ensure safety, having in mind the context and purpose of the statute, clearly seems to be necessary in order to enable safety to be ensured ... however, and conformably with the context of the section, the phrase 'to any extent, control' means no more than the person liable being able to compel (or direct or command) to any extent."

14 Section 22 of the Act requires persons who have control of premises used as a place of work to ensure that the premises are safe and free from risks to health. Section 22 applies to any person who has some degree of control over the premises so that he can make the premises safe. A person may have a sufficient degree of control over premises that he is able to make the premises safe for workers working on the premises, notwithstanding that they are not his employees and he has no control over their method of work. For example, a person may be able to ensure the safety of premises on which workers are working by removing or giving adequate notice of a concealed hazard.

15 The respondent did not give exclusive possession of the premises to Watervale. There are no express terms in the contract between the respondent and Watervale by which Watervale was given possession of the premises or any degree of control over the premises. The respondent contacted Mr Stewart and told him that on his way to work in Perth each morning the respondent would drive past the house and unlock the padlock which secured the house. Mr Stewart agreed to that arrangement and agreed that the Watervale employees would lock up the house and snap the padlock shut at the end of each day's work. The respondent gave evidence that at the time Watervale carried out its work there was still some other work to be done by other contractors but no other work was carried out on the site whilst Watervale did its work.

16 There was no express agreement that Watervale would have possession or occupation of the premises to the exclusion of the respondent or any other contractors engaged by the respondent. There is no basis for implying any term that Watervale would have possession or occupation of the site to the exclusion of the respondent. The respondent, as owner of the premises, had the right and ability to access the site at any time he wished.

17 The hazard to which Mr Cleaver was exposed was the presence of an unguarded void in the first floor. The appellant led evidence before the Magistrate that the practicable measures that could have been used to guard against the risk of a fall from the first floor included planking out and edge protection. Planking out involves a series of wooden planks being positioned across the void so that the void is entirely covered. A complete planking out of the void could be achieved by erecting a scaffold from the ground floor directly beneath the void. The scaffold could be constructed in such a way as to completely fill the void. The scaffold could be erected to a height that was level, or just below level, with the surface of the first floor. On top of the scaffold planks would then be positioned next to each other completely covering the area of the void and providing for a safe working platform. Edge protection is essentially a physical barrier between the working area and the void, comprising a series of vertical members to which a series of horizontal members are then attached. Mr Stewart gave evidence that after Mr Cleaver's accident Watervale withdrew from the site. Watervale went back about two weeks later to complete the job. At that time there was a scaffolding and handrail in place in the void area.

18 There was nothing to prevent the respondent from erecting scaffolding or edge protection to remove the hazard created by the unguarded void. He had the legal right and ability to do so. He had sufficient control of the premises to take practicable measures to ensure that the workplace was safe, that is that persons who were at the workplace were not exposed to a hazard constituted by the unguarded void.

19 The Magistrate erred in law in finding that the respondent was not a person in control of the workplace. Her Honour confined her consideration to whether or not the respondent had the power to direct the activities of the workers at the workplace. The Magistrate should have directed herself that the respondent had the requisite control of the workplace if the respondent had control of the workplace to the extent that he was able to take such measures as are practicable to ensure that persons who are at the workplace are not exposed to the hazard constituted by the unguarded void. Ground 1 of the appeal is made out.

20 Ground 2 of the appeal is that the Magistrate erred in law in failing to find that the respondent had failed to take such measures as were practicable to ensure that persons at the workplace were not exposed to hazards.

21 Section 22 of the Act requires a person who has, to any extent, control of a workplace to take such measures as are practicable to ensure that persons who are at the workplace are not exposed to hazards. "Practicable" is defined in s 3 to mean:

"reasonably practicable having regard, where the context permits, to -

(a) the severity of any potential injury or harm to health that may be involved, and the degree of risk of it occurring;

(b) a state of knowledge about -

(i) the injury or harm to health referred to in par (a);

(ii) the risk of that injury or harm to health occurring; and

(iii) means of removing or mitigating the risk or mitigating the potential injury or harm to health;

(c) the availability, suitability, and cost of the means referred to in paragraph (b)(iii)."

22 The state of knowledge referred to in subs (b) of the definition of "practicable" is that possessed by persons generally who are engaged in the relevant field of activity and not the actual knowledge, in fact, possessed subjectively by a specific defendant in particular circumstances: Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249 at 261 and Hamersley Iron Pty Ltd v Robertson, unreported; SCt of WA (Steytler J); Library No 980573; 2 October 1998 at 22. The conduct of the person in control of the workplace must be judged objectively. The prosecution, in order to secure a conviction under s 22(1) must prove either that the defendant actually knew of the risk of injury or harm to health occurring or that a reasonable person in the position of the defendant would have appreciated or foreseen the risk (that is the probability) of the injury or harm to health occurring: Chugg v Pacific Dunlop Ltd (supra) at 265.

23 A report by Lucio Figueiredo, an inspector in the Construction, Plant and Primary Industry Branch of Worksafe, was admitted into evidence by consent, subject to some objections by the respondent. Mr Figueiredo gave evidence that in his opinion, where work is being carried out on the first floor of a building and there is a void in the first floor and where there is no guard rail around the edges of the void and the void has not been fully planked out, there is a real risk that someone working in the vicinity of the void might fall through the void and be injured. Before the Magistrate, counsel for the respondent took objection to that evidence but conceded that "it is reasonably obvious that if there was a three metre void and it's unprotected, there is a hazard" and that it presents "a risk of injury or even serious injury". The respondent's case was that the void was an obvious hazard but that the respondent, in light of assurances previously given by Watervale, was entitled to rely upon that experienced subcontractor to work around the obvious hazard.

24 Mr Figueiredo gave evidence concerning practicable measures that could have been taken to avoid the hazard constituted by the unguarded void. No objection was taken to that part of the evidence of Mr Figueiredo. Mr Figueiredo gave evidence that the hazard could have been avoided by planking out or edge protection in the manner I have described earlier. Those measures could have been taken by the respondent.

25 The respondent submits that Watervale was an experienced contractor, that it had available to it all safety equipment required to perform the job and Mr Stewart had told the respondent that all work would be done correctly. Mr Stewart was aware there was a void in the first floor. Mr Stewart had told the respondent that Watervale had all requisite procedures in place, that there were regular toolbox-type meetings, that he would take responsibility for supervision of the work and he would not subcontract out the work. The respondent said that his queries to Mr Stewart were directed to ensuring that Watervale would perform the job in a safe manner and he was assured that it would be done correctly. The respondent submits that the void was an obvious hazard that the respondent, in light of assurances previously given by Mr Stewart, was entitled to entrust to Watervale to work around. The respondent submits that he was not obliged to anticipate that the experienced subcontractor, on whose assurance and expertise he relied, would depart from its own safe system of work and perform the work in an unsafe manner.

26 There was evidence before the Magistrate that there were discussions between the respondent and Mr Stewart concerning safety matters. However, there was no evidence of any discussions between Mr Stewart and the respondent concerning the void or taking measures to ensure that the void did not expose Watervale's employees to the risk of injury. Had there been such a discussion it may have resulted in assurances by the contractor to the respondent about steps it would take to ensure the safety of its workers. That may have resulted in the contractor installing edge protection or planking out the void or promising to do so. If the latter, then the respondent would have been obliged to check to see that the promise had been fulfilled: see Silent Vector Pty Ltd v Shepherd & Anor [2003] WASCA 315 per Pullin J at [22] - [23].

27 However, the evidence establishes that the respondent took no measures to ensure that the unguarded void did not expose workers at the workplace to the risk of injury.

28 The Magistrate erred in law in finding that the respondent had not failed to take such measures as are practicable to ensure that workers who are at the workplace are not exposed to hazards because it was reasonable for the respondent to have left the issue of the hazard created by the void to his contractor. It is not sufficient to discharge the duty imposed by s 22 of the Act to engage a contractor, assuming that the contractor will comply with occupational and safety obligations and do nothing further. The duty imposed by s 22 of the Act is a duty to take positive steps to ensure practicable methods of reducing risks of injury. It is not to the point that a contractor or other person engaged to do work at the workplace has duties under the Act separate to those obligations imposed on the person who had control of the workplace. That duty cannot be delegated to others in a way which avoids liability under the Act.

29 It is not sufficient to have general discussions with a contractor concerning carrying out the work in a safe manner and providing all necessary equipment. Where the state of the premises constitutes a specific hazard, then a person with the requisite degree of control over the workplace must take measures to address that specific hazard. As I have said, that might be done by obtaining assurances from a contractor that specific and adequate measures will be taken and by ensuring that those measures are taken. However, the respondent did neither of those things.

30 The Magistrate found that to the respondent's knowledge, the void was unguarded when he provided access to the premises to the employees of Watervale. The Magistrate also found that the respondent did not make any specific enquiry of Watervale about whether the respondent needed to provide any railing or planks to address the hazard posed by the void. The Magistrate erred in law in failing to find that the respondent had failed to take such measures as were practicable to ensure that persons at the workplace were not exposed to hazards. The case was established beyond reasonable doubt and the respondent should have been convicted.

31 The appeal will be allowed. The order acquitting the respondent of Charge No 3747/04 and the order that a certificate in favour of the respondent issue in the sum of $3000 will be set aside. I will hear from the parties concerning the further orders that should be made.