Orr v Hunter Quarries Pty Ltd

Section 5AE of the Criminal Appeal Act

1. Section 5AE of the Criminal Appeal Act provides: "Point of law stated during summary proceedings (1) At any time before the completion of proceedings before the Supreme Court in its summary jurisdiction, the Land and Environment Court in its summary jurisdiction, the District Court in its summary jurisdiction or a Court of Coal Mines Regulation in its summary jurisdiction, the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination. (2) The Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit."
2. It was not disputed that the prosecutor was the "Crown" for the purposes of s 5AE(1) (Cobar Management at [10]). Four matters concerning s 5AE of present relevance were determined or confirmed by Cobar Management.
3. First, Cobar Management approved (at [103]) the following statement by Simpson J in Environment Protection Authority of NSW v Goulburn Wool Scour Pty Ltd (2004) 137 LGERA 289 at 299; [2004] NSWCCA 439 at [36] (with whom Bell and Buddin JJ agreed) as a correct statement of the purpose of s 5AE: "… s 5AE is designed to facilitate the giving of advice by this Court to a first instance judge in order to enable the proper resolution of the issues in the proceedings. It arises where proceedings are still on foot and enables the proper and just determination of those proceedings, according to law, and in the correct application of the law. Section 5AE is expressed to apply to proceedings that have not come to an end, and which may, therefore, themselves be resolved by the determination of the questions of law ..." (emphasis added)
4. Second, Cobar Management confirmed that s 5AE empowers each of the courts exercising summary jurisdiction that are identified in the section to submit questions of law to this Court at any time before the completion of the proceedings. This includes the circumstances of this case, namely after the publication of reasons and prior to the making of final orders (Cobar Management at [101] per Bathurst CJ and Bell P; with whom Johnson J at [128], Garling J at [136] and Lonergan J at [137] agreed).
5. Third, Cobar Management held that, consistent with the purpose of s 5AE, the form of question that can be submitted under s 5AE must be so called "pure questions of law", that is questions that (at [109]): "… should not draw the Court of Criminal Appeal into questions of fact. Moreover, they must be questions whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question. This does not include a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts."
6. The confined nature of the questions that may be submitted is illustrated by the finding in Cobar Management that none of the questions stated by the primary judge in that case (apart from a question concerning jurisdiction) were "questions of law" within the meaning of s 5AE, and thus the Court was not empowered to answer them. Those questions were posed by reference to the findings made by the judge at first instance; e.g. was it "open" to make a finding such as whether a particular safety measure was reasonably practicable (at [26] and [110] to [111]).
7. The description in Cobar Management of the form of question that may be posed as "pure question[s] of law" appears to be synonymous with the meaning of "a question of law alone" which is often the subject matter of appeals (see for example Crimes (Appeal and Review) Act 2001, s 52(1)). Such a question is one that must "be stated and considered separately from the facts with which it may be connected in a given case" (Williams v R (1986) 161 CLR 278 at 287; [1986] HCA 88 per Gibbs CJ, Wilson and Dawson JJ) and does not include a ground that involves a mixed question of fact and law such as an error in the application of a legal principle (R v PL [2009] NSWCCA 256 at [25] and [26] per Spigelman CJ; "PL (No 1)"). That said, whether or not a question submitted raises such a question is to be addressed as a matter of form not substance. For example, the questions that were submitted to this Court in NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252 at [13] were framed by the first instance judge in terms that commenced "Did I err in law in finding …". However, they were addressed by this Court at a level of principle and not by reference to the particular facts of the case. In any event the approach stated in Cobar Management, being a recent decision of a five-member Court, must be applied.
8. Fourth, even if a "question of law" is submitted, this Court nevertheless retains a discretion to decline to answer it (Cobar Management at [112] to [115] per Bathurst CJ and Bell P; with whom Johnson J at [128], Garling J at [136] and Lonergan J at [137] agreed). As for the scope of the discretion, Bathurst CJ and Bell P observed that the instances where that discretion may be exercised include "where the questions submitted are misconceived or proceed on a false basis, or where any answer would lack utility" or where "underpinning the question is an argument or contention that could have been, but was not, put in the course of the hearing, and the raising of it at a very late stage of the proceedings may work procedural unfairness or vexation or oppression on a defendant" (at [115]). Otherwise, s 5AE limits the Court to answering questions that arise at or in reference to the proceeding so that either, as a matter of power or discretion, this Court should decline to answer questions that do not so arise.
9. In light of Cobar Management, it is necessary to note (or restate) the significant difference between this Court's function under s 5AE and the function it (and other Court's exercise) when hearing an "appeal", albeit an appeal restricted to a "question of law alone". As already noted, both an appeal on a question of law alone and a question of law submitted under s 5AE do not extend to a question of mixed law and fact. Nevertheless an "appeal" involving a question of law alone can be a means of ultimately challenging a finding of mixed fact and law at least where it proceeds from a misstatement (or wrong assumption) of principle as opposed to a mere misapplication of the correct principle. In Williams at p 287 Gibbs CJ referred to the statement of Nettlefold J in R v Jessop [1974] Tas SR 64 at 89 that: "a conclusion of mixed law and fact may be challenged under provisions in the terms of s 401(2)(b) [of the Tasmania Criminal Code which conferred a right to appeal on a question of law alone] where that conclusion proceeds from a misdirection of law". Such a circumstance is to be distinguished from an incorrect application of a correctly understood principle (see PL (No 1) at [25] and [26]). In R v PL [2012] NSWCCA 31 ("PL (No 2)") Bathurst CJ inferred from an incorrect conclusion of mixed law and fact that a trial judge had "applied incorrect principles to his consideration of the issue and thereby committed an error of law alone" (at [39]).
10. This aspect of determining appeals on a question of law alone has no counterpart to the exercise by this Court of its jurisdiction under s 5AE. While the Court has power under s 5AE(2) to "make any such order or give any such direction to the court concerned as it thinks fit" (see Rockdale Beef Pty Limited v Industrial Relations Commission of NSW and Anor [2007] NSWCA 128 at [149] to [150]), this power is limited by the purpose of the provision namely and "the giving of advice by this Court to a [court at] first instance…". Hence, this Court's only function is to answer the question of law posed to it and not consider any consequential issue such as whether some mixed finding of fact and law of the primary judge proceeded from an incorrect principle. In a matter such as this, where a case is stated after a substantive judgment has been given at first instance, it will be a matter for the primary judge to then determine whether the answers given by this Court to the questions posed warrant any reconsideration of what has already been decided. This reflects the difference between the purpose of an "appeal" being to correct a judgment at first instance and "the giving of advice by this Court to a [court at] first instance" (see Lavorato v R (2012) 82 NSWLR 568; [2012] NSWCCA 61 at [6] per Basten JA; Duarte v Director of Public Prosecutions [2020] NSWCCA 351 at [27] per Bellew J with whom Hoeben CJ at CL and Harrison J agreed).
11. As noted, most of the prosecutor's substantive submissions involve complaints about the manner in which his Honour applied the law to the facts as found. It follows that those complaints are beyond the scope of s 5AE.

The Judgment below

1. Under the heading "facts", the stated case noted that his Honour was satisfied of the facts as found in Hunter Quarries (No 1), set out the various questions that were submitted and described the appendices to the stated case being the transcript of the opening address of the prosecutor as well as their written submissions. It follows from the above that the relevance of this material to the exercise of this Court's function is relatively limited in that at most it can assist in determining whether the submitted questions arise at or in reference to the proceedings below or whether there is some discretionairy reason for refusing to answer them. To that limited end it is appropriate to describe the relevant statutory provisions and briefly summarise the parties' respective cases and the primary judge's findings.
2. Divisions 2, 3 and 4 of Part 2 of the WHS Act impose health and safety duties in various work contexts. Sections 31, 32 and 33 create three offences being a category 1 offence, a category 2 offence and category 3 offence respectively. In general, a breach of one of the health and safety duties is an element of each offence but they differentiate between the seriousness of the breach and the exposure of a person to harm. Relevantly, s 32 provides: "32 Failure to comply with health and safety duty - Category 2 A person commits a Category 2 offence if - (a) the person has a health and safety duty, and (b) the person fails to comply with that duty, and (c) the failure exposes an individual to a risk of death or serious injury or illness…."
3. This is an offence of strict liability (s 12A).
4. In this case the relevant duty that it was alleged that Hunter Quarries failed to comply with was that set out in s 19(1). Section 19 provides: "19 Primary duty of care (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of - (a) workers engaged, or caused to be engaged by the person, and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. (2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. (3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable - (a) the provision and maintenance of a work environment without risks to health and safety, and (b) the provision and maintenance of safe plant and structures, and (c) the provision and maintenance of safe systems of work, and (d) the safe use, handling, and storage of plant, structures and substances, and (e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities, and (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and (g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking. (4) … (5) …."
5. Section 19 needs to be read with ss 17 and 18 which provide as follows: "17 Management of risks A duty imposed on a person to ensure health and safety requires the person - (a) to eliminate risks to health and safety, so far as is reasonably practicable, and (b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable 18 What is "reasonably practicable" in ensuring health and safety In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including-- (a) the likelihood of the hazard or the risk concerned occurring, and (b) the degree of harm that might result from the hazard or the risk, and (c) what the person concerned knows, or ought reasonably to know, about- (i) the hazard or the risk, and (ii) ways of eliminating or minimising the risk, and (d) the availability and suitability of ways to eliminate or minimise the risk, and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk."
6. Part 3.1 of the Work Health and Safety Regulations 2011 supplements these provisions. Regulation 34 obliges a "duty holder" in managing risks to health and safety to identify "reasonably foreseeable hazards". Regulation 36 establishes a hierarchy of control measures to minimise risks to health and safety in circumstances where it is not reasonably practicable for a duty holder to eliminate those risks. In particular, the duty holder must, so far is reasonably practicable, substitute something for the hazard, isolate the hazard or implement "engineering controls" (which is a physical control measure such as a mechanical device or process).
7. Before the primary judge it was accepted, and his Honour found, that the elements of the offence under s 32 that invoked a breach of the duty under s 19(1) are (Hunter Quarries (No 1) at [6]): (1) The defendant was conducting a business or undertaking; (2) The defendant owed a health and safety duty to ensure, so far as was reasonably practicable, the health and safety of: (i) workers engaged by it or workers whose activities are influenced or directed by the defendant; (ii) while the workers were at work in the business or undertaking; (3) The defendant failed to comply with its health and safety duty; and (4) The failure exposed an individual to a risk of death or serious injury.
8. His Honour was satisfied that elements (1) and (2) were established (at [302] to [305]) but not satisfied beyond reasonable doubt of elements (3) and (4).
9. With element (3) and (4) two matters derived from Kirk v Industrial Court of New South Wales and Another (2010) 239 CLR 531; [2010] HCA 1; "Kirk") should be noted. The first matter is the necessity for the prosecutor to identify a "particular measure" that it is alleged a defendant should have undertaken so as to enable the application of ss 18 and 19 (Kirk at [12] to [14]; "Kirk"; Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 ("Bulga") at [111] and [123]).
10. The second matter is that the prosecutor must identify the risk which has not been addressed by the appropriate measure(s) (Kirk at [16]). An offence under s 32 involving a breach of the duty in s 19(2) is directed to the elimination or minimisation of "a risk". While prosecutions for breaches are usually brought following the death or occasioning of serious injury to a worker, the relevant risk to be assessed is "not the risk of the consequence, to the extent that a worker is in fact injured, but … the failure to take reasonably practicable steps to avoid the injury", that is a " failure to respond to a risk of injury" (Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 at [53]; "Nash"). Thus, the assessment of what is reasonably practicable in s 18 is directed to the likelihood of the risk occurring and the degree of harm that might result from the risk etc, not the likelihood of a particular accident occurring per se. Similarly with element 4, ie causation, "the relevant question is not whether the particularised failures of the duty holder were the cause of the death, the serious injury or illness of the worker but rather whether there was a causal relationship between the failure to comply with the duty by the taking of reasonably practicable measures and the risk to which the worker was exposed" (Grasso Consulting Engineers Pty Ltd v SafeWork NSW; Grasso v SafeWork NSW [2021] NSWCCA 288 at [27] citing Bulga at [127]).
11. Kirk concerned a prosecution of alleged breaches of former ss 15 and 16 of the Occupational Health and Safety Act 1983 (the "OHS" Act). Neither of the duties imposed by those provisions was qualified by the phrase "so far as is reasonably practicable" or anything similar. Instead, former s 53(a) established a defence where it was proved that it was not "reasonably practicable" for the person to comply with the provision of the OHS Act or the regulations the breach of which constituted the offence. As explained above, with an offence under s 32(1) involving a breach of the duty imposed by s 19 of the WHS Act the concept of "reasonably practicable" is a component of the offence and not a defence. Decisions of the former Industrial Commission in Court Session addressing the OHS Act accepted that the "reasonable foreseeability" of a risk materialising was relevant to an assessment of whether s 53(a) was established but not "of itself, conclusive" (NSW Industrial Relations Commission v Kirk Group Holdings Pty Ltd [2004] NSWIRComm 207; (2004) 135 IR 166 at [147]; "Kirk Group"; Drake Personnel Ltd t/a Drake Industrial v Workcover Authority of New South Wales (1999) 90 IR 432 at 457).
12. In the present case, the prosecutor identified the relevant risk that subsisted on the day of the accident at a broad level being a risk of death or serious injury from the excavator overturning while carrying out work in the work areas of the quarry generally (Hunter Quarries (No 1) at [309] to [311]). It identified the "particular measures" that should have been adopted as the fitting of the excavator with a "Roll Over Protective Structure" ("ROPS") (at [319]) or the adoption of a safe system of work in relation to the training and instruction of workers in operating excavators (at [320] and [346] to [356]). It contended that the failure to implement those measures exposed an individual, namely Mr Messenger, to a risk of death or serious injury from the excavator overturning.
13. Hunter Quarries' case focussed on what it contended was the aberrant and unforeseeable behaviour of Mr Messenger in operating the excavator in the area of the quarry where the accident occurred. In that context his Honour found that the northern end of the quarry, where Mr Messenger was operating the excavator and rolled over, was a "no go" zone and the area "was bunded off" but Mr Messenger had driven the excavator "across the bund separating the haul road from the no-go area, flattening the bund in the process" (at [202]). His Honour found that Mr Messenger was not instructed by his supervisor to take the excavator into that area to do any work, that there was no reason for the excavator to be in that area and there was no reason why his supervisor or anyone else who worked at the quarry would have known that Mr Messenger was working in that area (at [202]). His Honour concluded that "[i]n operating the excavator on the rocky slope, Mr Messenger breached a well-known rule in the quarry that no-one was to cross a bund."
14. As noted, his Honour was not satisfied beyond reasonable doubt that element 3 was made out. In addressing whether it was reasonably practicable for Hunter Quarries to take measures against a risk, his Honour addressed separately the risk from conducting excavator work in the "no go" zone and "excavators generally doing everyday tasks within the quarry" (at [338]). With the former his Honour found that the findings just noted meant that the "risk of death or serious injury from the excavator overturning on the day of the accident [in that area] was not reasonably foreseeable" and that "it follow[ed] that it was not reasonably practicable for the defendant to make provision against the happening of such [an] event" (at [343]). In relation to the "everyday operation of excavators" his Honour found that there was "no need for the defendant to take additional steps to ensure safety" as the "likelihood of the risk of overturn when an excavator was operated in accordance with [Hunter Quarries'] precepts was non-existent" (at [344]). So far as the particularised measures concerned the system of work, his Honour applied the same reasoning and further found that, "in any event, adequate information, instruction and training had been provided to all excavator operators by the defendant and thus there was no failure to ensure a safe system of work in that respect" (at [356]).
15. His Honour was also not satisfied beyond reasonable doubt that element 4 was made out. His Honour found that the "cause of Mr Messenger being exposed to the risk was the unforeseeable actions of Mr Messenger himself" (at [364]). I understand that the "risk" that his Honour is referring to was the risk of the excavator overturning.
16. The parties sought to characterise or summarise his Honour's reasoning in the context of contending that the various questions posed to this Court either do or do not arise at or in reference to the proceedings at first instance or that for some reason this Court should exercise its discretion not to answer them. In that context I record that I understand that his Honour addressed the case posed by the prosecutor by dividing the risk into the circumstances where an excavator was operated in the quarry's working areas and where it was operated in the "no go" area. With the former his Honour found that there was no risk of the excavator overturning and with the latter his Honour found that, in light of the instructions that were given to staff and the "bund" separating the area, the risk of it overturning was not reasonably foreseeable.
17. Further I do not understand his Honour to have concluded that the risk identified by the prosecutor did not exist. Instead, I take his Honour to have concluded that, because the risk was so negligible or confined, those measures identified by the prosecutor that were not adopted by Hunter Quarries were not "reasonably practicable". It is clear from the prosecutor's submissions in this Court that he contends that his Honour's approach did not, inter alia, properly address the entirety of the risk he identified and did not consider all of the subparagraphs of s 18 by reference to that risk and the protective measures he identified. It follows from the above that whether or not those contentions are well founded is not a matter for this Court to determine.

Questions 1 and 2: Power to withdraw and submit additional questions

1. The first two questions posed by his Honour for this Court are: 1. Does the proper construction of the Criminal Appeal Act 1912 (NSW) permit me to withdraw questions which I have previously submitted to the Court of Criminal Appeal pursuant to s 5AE of that Act? 2. Does the proper construction of the Criminal Appeal Act 1912 (NSW) permit me to submit additional questions to those previously submitted to the Court of Criminal Appeal pursuant to s 5AE of that Act?
2. The second question can be addressed first. Hunter Quarries contended that upon the first submission of a question to this Court by the primary judge the "jurisdiction of the referring court is spent". However, s 5AE enables the submission of a question "[a]t any time before the completion of proceedings". Where the rationale of the provision is to facilitate the giving of advice by this Court to a first instance judge and the proceedings at first instance are not completed then it follows that the trial judge can and, in some circumstances, must, refer questions as and when they arise and as may be necessary for the conduct of the proceedings. The answer to question 2 is "yes".
3. With the first question, if the rationale of the provision is to facilitate the giving of advice to judges at first instance, then pragmatism would suggest that the judge should be able to be withdraw the question if, say, the advice is no longer required. For example, in the meantime the defendant may have pleaded guilty, the prosecutor might have amended its pleading, altered its case or evidence may have emerged that rendered the relevant point moot. On the other hand, the subject matter of the proceedings in this Court is identified by the questions submitted by the judge of the District Court (Lavorato at [6]). The submission of a question that properly falls within s 5AE invokes this Court's jurisdiction. It is difficult to see how once this Court's jurisdiction is invoked it could somehow be withdrawn by a decision of a lower Court. The various reasons that might warrant a primary judge seeking to withdraw questions are also reasons why this Court could dispose of such a stated case peremptorily.
4. Ultimately in light of the answer to question 2 it is not necessary to answer this question. It was accepted by both parties (and the primary judge) that, in light of Cobar Management, the questions that were posed in Hunter Quarries (No 2) were not "questions of law arising at or in reference to the proceedings…". Neither party seeks that they be answered. In circumstances where further questions are validly before this Court then it is not necessary or possible for the earlier set of questions to be addressed. It follows that this Court does not need to and cannot answer those earlier questions and so no question truly arises about the primary judge's power to withdraw otherwise valid questions posed under s 5AE.
5. Accordingly, I propose that the Court decline to answer question 1 and the Court also state that "[t]o the extent that the questions posed by Russell DCJ as referred to in Orr v Hunter Quarries Pty Ltd (No 2) [2020] NSWDC 307 are before the Court, then the Court declines to answer".

Questions 3 to 5: Manner in which elements of the offence are addressed

1. Questions 3 to 5 of the stated case are: 3 Does the proper construction of the Act require the Court to determine (in the following order): (a) whether the pleaded risk to health and safety existed at the date of the alleged offence; (b) whether the pleaded measures were reasonably practicable within the meaning of s 18 of the Act; (c) whether the pleaded measures would have eliminated the risk to health and safety, or if not, minimised the risk to health and safety from the pleaded risk within the meaning of s 17 of the Act; (d) whether the failure by the Defendant to take those reasonably practicable measures was a significant or substantial cause of a worker being exposed to the risk of death or serious injury or illness? 4 In respect of question 3(b) above, is the Court required to take into account and weigh up all of the matters listed in s 18 of the Act? 5 In respect of question 3(c) above, does the proper construction of the phrase "so far as is reasonably practicable" in s 17 of the Act require the Court to assess whether the pleaded measures would have minimised the pleaded risk to health and safety to a greater degree than the measures (if any) that the duty holder had in place as at the date of the alleged offence?
2. The steps in question 3(a) to (c) are directed to element 3 of the offence under s 32 involving a breach of the duty imposed by s 19(1). The fourth step in question 3(d) is directed to element 4.
3. The prosecutor's submissions in relation to question 3 set out the relevant statutory provisions and then contended that what was required to address elements 3 and 4 was the undertaking of each of the above steps in the order stated. They then contend that a (positive) answer to this question will assist the primary judge because his Honour "has not engaged in the above decision-making process". In particular, the submissions contend that the primary judge did not make a finding as to whether the risk identified by the prosecutor existed, but instead only accepted that the risk arose because of the manner in which the excavator was operated and only assessed the likelihood of the risk if operated in accordance with the defendant's system for "everyday operation[s]". It was then said that the primary judge (wrongly) focussed on the foreseeability of the actions of Mr Messenger. It was submitted that, as a result of these errors, his Honour did not apply s 18 to such risk as existed and then did not address element 4.
4. Hunter Quarries submitted that all of the questions, including questions 3 to 5, do not arise at, or in relation to, the proceedings and the Court should decline to answer them. The submissions extracted passages from the prosecutor's opening submissions which referred to the "foreseeability" of the risk of the excavator overturning as part of the assessment of the reasonable practicability of its suggested measures. Hunter Quarries contended that the prosecutor's case before the primary judge is inconsistent with the propositions he expounds on appeal. With question 3, Hunter Quarries submitted that the question has no utility because his Honour addressed the case posed by the prosecutor including his formulation of the relevant risk by making the findings of fact noted above.
5. The prosecutor's reply submissions contended that the case conducted by the prosecutor at first instance is not relevant to the referred questions. I reject that contention as the manner in which a party conducted its case at first instance is undoubtedly relevant to the Court's discretion to decline to answer them (see Cobar Management at [115]). The prosecutor submitted that, in any event, his case at first instance was not confined to or limited to reasonably foreseeable risks, a proposition the primary judge seems to have accepted (at [22]), and that in referring to foreseeability he was otherwise invoking aspects of s 18. The prosecutor's submissions further contended that the factual findings of the primary judge did not address his formulation of the relevant risk such as all the possible means of deploying the excavator across all areas of the quarry.
6. A resolution of these submissions would only involve the Court determining the prosecutor's complaints about the primary judge's findings under the rubric of determining whether the question posed arises at or in reference to the proceedings. It suffices to state that I am not satisfied that any of questions 3, 4 or 5 are inconsistent with the prosecutor's case at first instance even though the prosecutor did not expressly submit that elements 3 and 4 should be addressed in the manner contended for by question 3. I am also not satisfied that they lack utility in that it is at least arguable that, if they were answered in the manner contended for, they may affect the outcome of the proceedings.
7. Nevertheless question 3 is misconceived. The opening part of question 3 asserts that the specified questions must be addressed "in the following order". There is nothing in the WHS Act which directs a trial judge to address either the elements of an offence or its component parts in a specified order, although in the ordinary course that may be a prudent course to take. However, in some cases that may not be necessary. For example, with the fourth step, it may be that, in a given case, it is manifestly obvious that the failure to take the measures alleged by the prosecutor did not expose an individual to the identified risk or any risk of death or serious injury or illness. In such a case why would it be a requirement for the trial judge to nevertheless undertake the analysis supposedly required by the first three steps asserted in question 3?
8. A related problem with question 3 is its potential to distract from the task which the statute requires. The first alleged step is not derived from any statutory provision. An assessment of the existence of the risk is implicit in the second step, ie the determination of whether the identified measure is "reasonably practicable" in that s 18(a) requires a determination or assessment of the "likelihood of the ... risk concerned occurring". If the assessment is that the risk does not exist, then the likelihood of it occurring will be zero and that may be the end of the analysis. While there is nothing to preclude a trial judge first determining that an alleged risk exists, why should there be a requirement to separately determine that the risk exists and then a further requirement to later determine the likelihood of the risk concerned occurring?
9. If question 3 was answered "yes" then the result would be to impose a structure of decision making that is not required by the statute and, at least in some cases, may cause trial judges to deviate from the requirements of the statute. It can be stated that, in the ordinary course, the trial judge's assessment of element 3 should take the prosecutor's specification of the "risk" and the particular measures, apply s 18 to determine whether the measures are reasonably practicable in relation to that risk and, if they are, then determine whether the defendant failed to eliminate that risk, or, if it is not reasonably practicable to do so, failed to minimise that risk. The steps are all interrelated in that an assessment of whether the identified measure was reasonably practicable will involve an assessment of, inter alia, the likelihood of the risk occurring (s 18(a)) as well as the available ways or eliminating or minimising the risk (s 18(e)).
10. Accordingly, I propose that question 3 be answered "no".
11. On its face question 4 appears to reflect no more than what s 18 states. Echoing its other submissions, in substance the prosecutor contended that the question arises and is of utility because the primary judge did not apply s 18 but instead at most only addressed s 18(a) and only did so by reference to the reasonable foreseeability of Mr Messenger's conduct, a matter upon which I do not comment. Similarly, Hunter Quarries' submissions contend that this question does not truly arise because on proper analysis of the entirety of the primary judgment his Honour addressed all the provisions of s 18.
12. Two matters should be noted about question 4. First, as noted, if an assessment of the likelihood of the risk results in a determination that there was no risk then the analysis required by s 18 would in substance appear to be complete. This suggests that the application of s 18 is generally case dependent and that it is not every case in which all of the factors listed in s 18 must be addressed. Second, in any event, the question is premised on question 3 being answered "yes", whereas I consider that question 3 should be answered "no". Accordingly, I propose that question 4 be answered "does not arise".
13. Like question 4, question 5 is premised on question 3 being answered yes. However, I consider it should be answered "no". I propose that question 5 also be answered "does not arise".

Questions 6 and 7: Reasonable Foreseeability

1. Questions 6 and 7 of the stated case are as follows: 6 Is the reasonable foreseeability of an incident in which the pleaded risk to health and safety manifested, relevant to assessment of the breach of the duty under s 19(1) of the Act? 7 Is the reasonable foreseeability of the pleaded risk to health and safety to the duty holder relevant to the assessment of whether pleaded measures were "reasonably practicable" having regard to the provisions of s 18 of the Act?
2. Question 6 concerns the "reasonable foreseeability" of an incident in which the relevant risk manifested. Question 7 concerns the reasonable foreseeability of the pleaded risk. The parties referred to various authorities concerning the significance or otherwise of the tortious concept of reasonable foreseeability to a determination of the elements of an offence under s 32 for a breach of the duty imposed by s 19(1). Hence the prosecutor referred to Kirk Group cited above. In relation to question 6, the prosecutor contended that s 18, including s 18(a) and s 18(c)(i), does not leave "any room for a consideration of the 'reasonable foreseeability" of the circumstances of the incident in the determination of whether a breach of s 19(1) of the WHS Act has been made out". In relation to question 7, the prosecutor referred to the observations by Edelman J in Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428; [2019] HCA 2 concerning the different purposes of the tort of negligence and the statutory regulation of workplace health and safety and the "higher duty" imposed by the WHS Act (and its equivalents) compared to the standard of care in negligence (at [161] to [162]). The prosecutor contended that this requires that "the use of common law concepts of 'reasonable foreseeability' [be eschewed] and … attention [be directed] … to the text of the statute".
3. Hunter Quarries referred to various authorities referred to by the primary judge exemplified by the proposition his Honour derived from WorkCover Authority of NSW v Kellogg (Aust) (1999) 101 IR 239; [1999] NSWIRComm 453 concerning a breach of s 15(1) of the OHS Act that "if a defendant is able to demonstrate that the circumstances or causes of the detriment to safety constituting the offence were not reasonably foreseeable, it will generally have thereby established that it was not practicable to take measures to guard against that risk" (at p 259).
4. The reasonable foreseeability of the kind of the injury that was suffered is a limiting condition of the existence of a duty care in negligence (Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; [2002] HCA 35 at [12]). However, the phrase "reasonable foreseeability" is not found in the WHS Act and it has no particular statutory significance to an assessment of the elements of an offence under s 32 concerning a breach of the duty found in s 19 (although it is the measure of the separate duty imposed by regulation 34 to assess hazards). That said, the prosecutor's submissions on this topic overlook that this Court's only function is to answer the questions that are posed. Questions 6 and 7 simply ask whether an assessment of either an incident or the risk are "relevant" to an assessment of the breach of the duty imposed by s 19 or the application of s 18. Consistent with Kirk Holdings, a determination that something is or is not "reasonably foreseeable" is a measure or assessment of "likelihood". A finding that the manifestation of a risk is not reasonably foreseeable is a finding concerning its likelihood (s 18(a)) although it is not necessarily determinative of whether a particular measure designed to address that risk is reasonably practicable. Similarly, even though the offence is not directed to the specific incident in which the risk may have manifested but the risk itself (Nash supra), an assessment of the reasonable foreseeability of that manifestation has some relevance to an assessment of the likelihood of the risk materialising, although again it is not necessarily determinative of the assessment required by s 18(a).
5. I propose that questions 6 and 7 be answered "Yes, but it is not necessarily determinative".

Questions 8 and 9: The Conduct of the Worker

1. Questions 8 and 9 provide: 8 Does the Act permit the Court to take into account whether the duty holder could reasonably foresee the conduct of the worker(s) exposed to the pleaded risk, prior to considering whether the pleaded measures were reasonably practicable having regard to the provisions of s 18 of the Act? 9 Does the Act permit the Court, in circumstances where it finds that the duty holder could not reasonably foresee the conduct of the worker(s) exposed to the pleaded risk, to not consider whether the pleaded measures were reasonably practicable having regard to the provisions of s 18 of the Act?
2. With question 8, the prosecutor's submissions contended that the primary judge "approached the task of determining whether the Defendant has breached its duty (Element 3) by focussing on whether the duty holder could reasonably foresee the conduct of the worker, prior to considering whether the pleaded measures were reasonably practicable having regard to the provisions of s 18 of the [WHS] Act". The submissions contend that this was inconsistent with the stepped approach that is the premise of question 3. The submissions referred to question 9 as an "extension" of the issue raised by question 8. It is predicated on the same assumption as to the primary judge's reasons.
3. Both of these questions only arise at or in refence to the proceedings if the primary judge had considered the foreseeability of Mr Messenger's conduct either prior to or without considering whether the pleaded measures were reasonably practicable. However, the first instance judge did consider the conduct of Mr Messenger in assessing the 'likelihood" of the pleaded risk materialising; i.e., the risk of the excavator overturning was not reasonably foreseeable because it would only manifest if Mr Messenger contravened clear instructions and directions and it was not reasonably foreseeable that the incident would occur. This was not undertaken prior to or separate to applying s 18 but as part of applying s 18, specifically s 18(a) (and s 18(c)). As noted, whether or not his Honour treated the outcome as determinative of whether the pleaded measures were reasonably practicable and erred in doing so are not issues that arise in these proceedings.
4. Accordingly, I propose that the Court decline to answer questions 8 and 9.

Proposed Answers

1. Accordingly, I propose the questions posed be answered as follows: Question 1: The Court declines to answer. Question 2: Yes. Question 3: No. Question 4: Does not arise. Question 5: Does not arise. Question 6: Yes, but it is not necessarily determinative. Question 7: Yes, but it is not necessarily determinative. Question 8: The Court declines to answer. Question 9: The Court declines to answer.
2. I also propose the Court state "To the extent that the questions posed by Russell DCJ as referred to in Orr v Hunter Quarries Pty Ltd (No 2) [2020] NSWDC 307 are before the Court, then the Court declines to answer."
3. WALTON J: I agree with Beech-Jones CJ at CL.
4. PRICE J: I agree with the reasons and proposed answers of Beech-Jones CJ at CL.

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