R v A C R Roofing Pty Ltd [2004] VSCA 215

Criminal law - Trial - Unfair invocation of the doctrine of agency following close of Crown case - Inadequate directions as to the application of the doctrine of agency - No substantial miscarriage of justice - Procedure - Particulars - Adequate implied delineation of matters alleged to be the subject of control.

2. I have had the benefit of reading the judgment to be given by Nettle, J.A. and, for the reasons he states, I consider that this application should be dismissed. Ultimately I have found that the only matter of real difficulty was the proper interpretation to be given to the word "engaged" appearing in sub-s.(3)(a) of s.21 of the Occupational Health and Safety Act 1985. It is sufficient to say that practices adopted in industry and commerce generally for many years have been sufficiently flexible to allow for the use of employees of one company by another, howsoever those arrangements come about. Although paid (ordinarily) by their true employer, they are in most circumstances to a greater or lesser degree under the practical control of another business enterprise. That is why a provision such as sub-s.(21)(3) was passed and the question is only how far should it be taken as extending. Neither the word "engaged" nor the expression "independent contractor" is defined by the Act, so that the Court is required to give each a commonsense meaning for the purposes of this important and wide-ranging section. The reasons given by Nettle, J.A. point to the conclusion that the obligation under s.21 to provide and maintain a safe "working environment" rests on the "employer" who effectively has "control" of the premises, as contemplated by para.(b) of sub-s.(3). There would seem no good reason, having regard to sub-s.(3) and its form and purpose, why the persons who can claim the benefit of s.21 should be confined to those in direct contractual relationship with that occupier of the premises, so long as the person is brought onto the premises for the purposes of the occupier's enterprise and so long as the latter has some control over what that person does. The word "engaged" has had, as Nettle, J.A. has pointed out, a wide variety of meanings over the years according to the circumstances in which it has been sought to be used. It is clearly not confined to arrangements with persons "employed", in the strict sense, nor to those "employed" in the somewhat looser sense as used in relation to the acquisition of the services of an independent contractor. That the word "engaged" has not been lightly used and has been seen by Parliament to have a different meaning from "employ" may be seen from sub-s.(4)(c) of the same section where the expression

"employ or engage persons ..." has been used. Moreover I do not think the use of the expression "independent contractor" requires a stricter meaning to be given to the word "engage", for it is simply seeking to refer to a person or enterprise independent and separate from the employer or employee. In its context the natural meaning of the word "engage" is "to secure or obtain the services of", whether or not there be a direct payment to that person for those services. Of course, as in the present case, there is ordinarily some payment to somebody for the obtaining of the services, but that is not essential, so long as there is some form of "control". The reasons of Nettle, J.A. make abundantly clear why this conclusion should be reached.

7. I agree that this application for leave to appeal against conviction should be dismissed. I do so for the reasons advanced by Nettle, J.A. in his judgment.

12. This is an application by A.C.R. Roofing Pty Ltd ("A.C.R.") for leave to appeal against a conviction of one count of failing to provide and maintain a safe working environment, contrary to s.21 of the Occupational Health and Safety Act 1985 ("the Act"). The grounds of appeal are largely concerned with the judge's directions to the jury on the meaning and application of s.21(3) of the Act.

21. Duties of employers (1) An employer shall provide and maintain so far as is practicable for employees a working environment that is safe and without risks to health. (2) Without in any way limiting the generality of sub-section (1), an employer contravenes that sub-section if the employer fails--

(a) to provide and maintain plant and systems of work that are so far as is practicable safe and without risks to health;

(b) to make arrangements for ensuring so far as is practicable safety and absence of risks to health in connexion with the use, handling, storage and transport of plant and substances;

(c) to maintain so far as is practicable any workplace under the control and management of the employer in a condition that is safe and without risks to health;

(d) to provide adequate facilities for the welfare of employees at any workplace under the control and management of the employer; or

(e) to provide such information, instruction, training and supervision to employees as are necessary to enable the employees to perform their work in a manner that is safe and without risks to health.

(3) For the purposes of sub-sections (1) and (2)--

(a) "employee" includes an independent contractor engaged by an employer and any employees of the independent contractor; and

(b) the duties of an employer under those sub-sections extend to such an independent contractor and the independent contractor's employees, in relation to matters over which the employer--

(ii) would have had control but for any agreement between the employer and the independent contractor to the contrary.

(a) monitor the health of the employees of the employer;

(b) keep information and records relating to the health and safety of the employees of the employer;

(c) employ or engage persons who being suitably qualified in relation to occupational health and safety are able to provide advice to the employer in relation to the health and safety of the employees of the employer;

(ca) nominate a person with, or persons each with an appropriate level of seniority (not being a health and safety representative) to be the employer's representative or representatives under sections 26 and 31;

(d) monitor conditions at any workplace under the control and management of the employer; and

(e) provide information to the employees of the employer, in such languages as are appropriate, with respect to health and safety at the workplace, including the names of persons to whom an employee may make an inquiry or complaint in relation to health and safety.

36. "Employee" and "employer" are defined in s.4 of the Act as follows:

"employee" means a person employed under a contract of employment or under a contract of training;

"employer" means a person who employs one or more other persons under contracts of employment or under contracts of training;

42. In the second half of 1999, Peter Gibson Developments Pty Ltd had under construction an extension to an existing commercial building at 269 Williamstown Road, Port Melbourne. By mid October 1999 it was time to install the roof and to that end Peter Gibson Developments Pty Ltd retained the applicant to erect and install the roof, including internal access to the roof, roof safety mesh, insulation box guttering and associated flashings and roof plumbing, for a fixed price of $22,000. After the roof beams and purlins had been installed and some but not all of the safety mesh had been secured in place, on 25 October 1999 the applicant contracted with Associated Rigging Pty Ltd ("Associated Rigging"), a crane company, to lift packs of new steel roof sheets onto the roof purlins, so that the applicant might then install the sheets. Shortly before 29 October 1999, Associated Rigging Pty Ltd ascertained that it did not have enough men and machines available to carry out the work in the time required, and so on that day it contracted with James Cranes Pty Ltd ("James Cranes") to provide a 20 tonne with a crane operator and a dogman to carry out the task. Later that day when the lift was under way, the crane touched overhead powerlines while the dogman was handling a pack of roof sheets suspended from the crane and the dogman was electrified and fell dead from the roof purlins to the concrete floor below. Medical evidence established that the cause of death was electrocution.

46. On 25 November 2003 the applicant was arraigned before the County Court at Melbourne on three counts of failing to provide and maintain a safe working environment contrary to s.21 of the Act. It was acquitted of two of the counts but convicted of the third, namely, that:

"(Count 3) at Port Melbourne on 29 October 1999, being an employer it failed to provide and maintain so far as practicable for employees a working environment that was safe and without risks to health, in that it failed to provide and maintain plant and systems of work that were so far as practicable safe and without risks to health."

"1. ACR., through its servant Lawrence Palmer, requested Matthew King and Richard Reynolds to place roofing sheets on to the roof of the subject premises. 2. The placement requested, caused or permitted by ACR constituted an unsafe system of work in that it exposed Matthew King to the risk of injury through falling or electrocution. 3. It was practicable to eliminate or alleviate the risk of King falling by covering the roof with safety mesh or using an individual fall arrest system, in compliance with Paragraph 2.1 of the Code of Practice for Safe Work on Roofs No 10 (1/7/89). 4. It was practicable to eliminate or alleviate the risk of King suffering electrocution by: (a) Compliance with Code of Practice for the Safe Use of Cranes in the Building and Construction Industry, No 11 (1/3/1990), paragraph 2.1, which required that whenever Crane operations may cause any part of the load to come within 6.4 metres of power lines. Every effort should be made to have the powerlines isolated; or (b) Compliance with the Rules for Operating Near Overhead Powerlines for Cranes (4/10/99) which provided that a spotter was required if a Crane was operating within 3.0 to 6.4 metres of a power line on a pole: and compliance with the Australian Standard AS 2550.1, paragraph 7.17 (crane operations near overhead power lines) which required the use of non-conducting taglines: and prohibited any person, other than the crane operator, to be in contact with any part of the crane or load, except with a non-conducting tagline, once the lift had commenced."

55. At the outset of the trial the prosecutor brought to the judge's attention that a question of law might arise as to whether A.C.R. had "engaged" James Cranes within the meaning of s.21(3). He stated that he expected that the evidence would be that A.C.R. had hired Associated Rigging or contracted with Associated Rigging to provide the crane and that Associated Rigging "sub-contracted" the job to James Cranes and that James Cranes supplied the crane. There was then the following discussion:

"THE PROSECUTOR: Now, a question of law might arise as to whether ACR engaged James Cranes. In other word, before the jury could be satisfied as to whether King and Reynolds were employees - - - HIS HONOUR: I'd have to be satisfied that ACR engaged the independent contractor. THE PROSECUTOR: Being James Cranes. And that's a question of law as to what is encompassed by "engaged" and the jury could only answer that question following directions from Your Honour as to what that means. I may be wrong, Your Honour, maybe the question won't arise in the proceedings."

59. The judge inquired as to what was shown in the depositions, to which the prosecutor replied that the depositions showed that A.C.R. gave the job to Associated Rigging, who could not do it, and hence that they in turn had given it to James Cranes, and that it appeared that James Cranes were going to charge Associated Rigging and that they in turn were going to charge A.C.R. The discussion then continued:

"THE PROSECUTOR: ...So it really might come down to a quite nice question of statutory interpretation as to whether "engage" could encompass James Cranes. As I said, Your Honour, a jury would - - - HIS HONOUR: And a sub-contractor, albeit that you didn't have any dealings in any contractual basis. PROSECUTOR: Yes, that James Cranes has come on the site and ACR has engaged him in work, whether they're in a contractual relationship with them or not they've engaged them. HIS HONOUR: On the facts it sounds like ACR have engaged one company who have then engaged someone else. PROSECUTOR: As I say, Your Honour, the jury would only be able to answer those questions following a direction from Your Honour - - -"

63. At that point the judge asked counsel for A.C.R. what his attitude was on the point, and counsel replied in substance that it was plain that A.C.R. had not engaged James Cranes and, for that reason, he had invited the Crown to withdraw the charge under s.21. He submitted, however, that the judge should not rule on the point at that stage but instead allow the Crown to open the case and call its evidence and then determine the point on the basis of the evidence at the conclusion of the Crown's case. As counsel put it:

"This, Your Honour, will be a matter for evidence. If at the end the Crown can't make out its case, it's not a question of telling the jury anything, it's a question of taking it away from the jury. As we say, the Crown were invited to make it easy, they didn't take up the invitation..."

68. When the prosecutor later opened the Crown case to the jury he said this about the issue:

"...On 25 October 1999 - that is four days before the particular day that the roofing sheets were placed on the roof - ACR engage Associated Rigging Pty Ltd as the crane company to lift the roof sheets onto the roof of the building. So ACR hired Associated Rigging. Associated Rigging were unable to do the job and so they passed it on to James Cranes Pty Ltd... ... ...On 28 October 1999 or thereabouts the operations manager of James Cranes, Keith Kelton, received a telephone call from Associated Rigging requesting a 20-tonne crane with crane operator and a rigger-dogman for 1 o'clock the next day. The purpose was to lift in place the roofing sheets required by ACR".

72. The prosecutor then explained how the operations manager of James Cranes had arranged for one of its cranes and an operator [Richard Reynolds] and one of its employee riggers [Matthew King] to attend on site, and tendered as evidence an Associated Rigging purchase order form dated 25 October 1999 for a "crane up" for A.C.R. and a James Crane job sheet for the supply of crane operator and dogman to Associated Rigging.

75. Later in the opening, when explaining the elements of the offences charged, the prosecutor told the jury:

"S.21 of the act refers to employees and you will have heard me say that Mr Matthew King and Mr Richard Reynolds were employees of James Cranes, whereas counts 1-4 relate to ACR Roofing and you might be thinking, well, how could Richard Reynolds or Matthew King be employees. There is a provision of the Act - and what I'm about to say is a matter of law and anything I say on the law is subject to what His Honour says because His Honour is the judge of the law in this case. But s.21 sub-s (3) of the Act - and these offence Counts 1 -3 are under s.21 - provides that an employee "includes an independent contractor engaged by an employer and any employees of the independent contractor". So then it becomes a question for you whether the relevant person, and in the case of Count 3 [that means] Mr King, was an employee of an independent contractor engaged by ACR Roofing.... ... ...What that means is this, ladies and gentlemen: if Mr King was an employee within the meaning given under that section of 21, then s.21 applies. But if he wasn't an employee then the prosecution relies upon s.22 which relates to all other persons than employee or self-employed persons...."

79. The Crown's evidence was in accordance with the depositions and with the what the prosecutor had said at the outset of the trial about A.C.R. being retained to install the roof and retaining Associated Rigging to crane up the roof sheets and Associated Rigging sub-contracting the work to James Cranes. Mr Hoare who was the managing director of Associated Rigging testified to the arrangement with James Cranes and verified the Associated Rigging purchase order. He said that when Associated Rigging realised that they did not have the capacity to do the job on 29 October 1999 they had "passed on the job to Barry James". He was asked whether he had any "reason to believe that A.C.R. would accept the substitution", and he replied that they had "done it quite a few times before" and that "there was never a problem". He was also asked whether A.C.R. knew of the substitution and he said that they would have known of it because he had told "Pam" at A.C.R. (whom he thought to be "a secretary or something like that") that Barry James would be going there to do the job. But he said that there was not "any written contract with A.C.R. apart from this purchase order."

82. Mr Kelton who was the operations manager for James Cranes verified that he had received a call from Mr Hoare on 29 October 1999 and that James Cranes had agreed to provide a 20 tonne crane and a dogman to attend at the site, and he identified the job sheet document which he said he had filled out in the respect of the request. He did not say, and it was not suggested to him, that James Cranes had contracted with anyone except Associated Rigging.

85. The Crown also tendered a record of interview with Mr Ian Martin of A.C.R. in which the following questions and answers were asked and given.:

"68. What was the relationship between ACR Roofing P/L and James Cranes P/L?--- Um, James Cranes had been cross hired by our normal crane company , as they were unable to do the job. 69. Who was your normal crane company?--- Associated Rigging. 70. So they were unable to do the job. Who employed James Cranes?---Um, Associated Rigging cross hired the job to James Cranes. 71. This is standard procedure in the industry? --- Oh , it's happening on numerous - in numerous occasions, yes."

89. At the conclusion of the Crown's case, counsel for A.C.R. made a no case submission that :

"The overwhelming preponderance of evidence, Your Honour, is that Associated Rigging was engaged by ACR Associated Rigging then engaged James Cranes so that it can't be said in any sense that ACR Roofing Pty Ltd engaged James Cranes. We say as a result each of Counts 1, 2 and 3 falter at the threshold."

93. The Crown's response was in effect to say that although James Cranes was a sub-contractor, and therefore not in privity of contract with A.C.R., the conception of "engagement" for the purposes of s.21 should be seen as broad enough to encompass the relationship which exists between a head contractor and a sub-contractor in the circumstances which occurred. As the prosecutor put it:

"THE PROSECUTOR: Yes. Now, if my leaned friend is correct [scil. that "engage" means bind by contract or a promise, hire or employ], then there is a huge loophole in the Act, because it would be a very simple matter to escape the consequences of s.21 and s.22. Let me put to Your Honour perhaps a very common scenario: a company needs a temporary secretary, so they ring an employment agency, who in turn rings a secretary to go and work for the employer. The secretary is an independent contractor, the company pays the agency, so that particular secretary, if my learned friend's submission is correct, would not be caught by s.21, and also would not be caught by s.22. ... Your Honour would be reluctant to reach a conclusion that the Occupational Health and Safety Act simply did not apply to persons such as a temporary secretary, but the whole act, the protection set out in ss.21 and 22 simply didn't apply if the person being hired was an independent contractor hired through a third party, such as an employment agency. This argument really does depend upon the meaning to be given to engaged..."

97. The judge then delivered a ruling in which his Honour appeared to accept that "engagement" was limited to the meaning for which A.C.R. contended, but in which he rejected the no case submission on a basis that there was evidence sufficient to establish that A.C.R. had contracted with James Cranes through the agency of Associated Rigging:

"One needs to examine the evidence that relates to ACR and in particular that of Mr Martin. At question 74 of the Record of Interview (Exhibit NN) when asked about the relationship between ACR and James Cranes, Mr Martin said, "James Cranes had been cross-hired by our normal crane company, as they were unable to do the job." It is also important to bear in mind [the] fact that not only did Mr Martin speak to his on-site supervisor Mr Palmer and advise the time when the crane was coming, but had conversations with Mr Palmer after the crane crew for James Cranes had actually arrived on site. I find in those circumstances that upon the principles of construction as I have indicated, ... the cross-hiring as referred to by Mr Martin in the record of interview sufficient to satisfy the requirement of the word `engaged' in the section. In a contractual sense, an agency and agreement would be implied by way of agency an or a quantum [meruit] could be established. But in particular an implied agency would apply in this case, so that the hiring of James Cranes Pty Ltd, albeit done by Mr Hoare of Associated Rigging in these circumstances, is sufficient to satisfy the term `engaged' as set out in s.21[(3)](a)."

101. Not surprisingly perhaps, that led to a submission by counsel for A.C.R. that it would be an appealable error to charge the jury on the basis that the elements of the offence could be satisfied by importing some principle of agency. The judge in turn rejected that submission, observing that he could not understand why counsel should draw his attention to that possibility when Counsel had already heard his ruling on the matter and that he intended to charge as he had ruled.

104. Thus his Honour did indeed charge the jury, as follows:

"The Oxford Dictionary, if we concentrate on Part (a) there, the word `engaged'. The Oxford Dictionary defines the word `engaged' in the sense that is relevant here as `binding by a contract or a promise as a hiring or an employment'. Now the [prosecutor] says to you here [that] the circumstances are sufficient to amount to an engagement. [Counsel for ACR's] argument to you is simply, that`s not so, there is no engagement here. They are the employees of James Cranes, not of ACR. Now I direct you as a matter of law that a corporation can engage an independent contractor via an agent. And the [prosecutor] in this instance relies upon the extended definition in this way.... [His Honour then outlined the evidence concerning A.C.R.'s engagement of Associated Rigging and of Associated Rigging's engagement of James Cranes and read out to the jury the questions and answers from Mr Martins' record of interview concluding with Mr Martin's answer that "James Cranes had been cross-hired by our normal crane company as they were unable to do the job." His Honour then continued]... ...Hence as a matter of law I tell you that such cross-hiring is sufficient to satisfy the definition of `engaged' in this instance. Ultimately, members of the jury, this is a question of fact for you...are you satisfied as a fact that that engagement took place and therefore that part of the satisfaction of the extended duty, the first part, you have been satisfied beyond reasonable doubt that there is an engagement? ...Assuming you are satisfied on the evidence that there was an engagement, an engagement through the agency of Associated Rigging, the next aspect you will see in that definition is: `... (b) the duties of an employer under these sub-sections extend to an independent contract and the independent contractor's employees in relation to matters over which the employer had control'. ... [The prosecutor] says to you that the matters - see the word `matters' on that second last line of (b), `in relation to matters over which the employer has control[`], the matters over which the employer, ACR has control are, pursuant to...the contract with the owner company, ...to erect safety mesh at the site...It is submitted by the [prosecutor] to you that the employer, ACR, has control over its contractual obligation, that is, the obligation to erect the safety mesh and insofar as that is concerned, any risks to health and safety brought about by the failure to complete that work is a risk that must rest with ACR. The second matter over which the [prosecutor] says they have control to you is the building of the roof. Again you will see [in ACR's contract with Peter Gibson Developments] that they have contracted to build the roof, the purlins and the gutters. That is ACR. The [prosecutor] says to you, it is not enough in those instances for you [ACR] to say that you have looked after the safety of your workers, you have got to look after the safety of all of the workers who are involved in the erection of a matter that you have control over, that is, you have got control of erecting the roof and you have got to take safety precautions for them. The Act says that an employer in these circumstances must provide for the safety of independent contractors or their employees..."

108. At the conclusion of that day, counsel for the applicant sought that the jury be discharged. He argued that the judge had erred in directing the jury that the evidence was capable of establishing an agency; that the concept of agency was not one that was found in the Act; that it was one that his Honour "had found [himself] in order to defeat the submission of no case that [the applicant] made"; that the judge had by putting the concept "descended into the arena"; that it was not an argument that had been put by the prosecutor; and that it resulted from his Honour's "trying to fix up the deficiencies in the Prosecutor's case." Counsel further submitted that the judge had exacerbated the problem by directions which his Honour had given as to the "matters" over which it was alleged that A.C.R. had control. It was said that those directions "completely ignore[d] the particulars that [had] been supplied by the Crown and the way in which, at least in their written material, [the Crown had] put their case". The judge replied that he saw no basis whatsoever to discharge the jury. Counsel then requested that the judge correct the directions which had been given to the jury, and the judge said that he did not intend to correct them.

111. The next day counsel for the applicant again pressed the application for discharge of the jury on the basis that what the judge had said to the jury about agency effectively told them that it was a fait accompli. But again the judge refused the application. Counsel for the applicant then complained again that the agency argument was one of the judge's own making, which had not been advanced by the Crown, and asked the judge whether, if he would not discharge the jury, he would at least further direct the jury on the law of agency and in particular upon the facts of which they would need to be satisfied before they could determine that the applicant had engaged James Cranes through the agency of Associated Rigging. The judge replied that he agreed that the notion of agency had not been raised by the Crown but that it was "a determination of law" and it was not the function of the Crown "to raise the appropriate law". As his Honour expressed his thoughts:

"Well I agree totally with you on that [namely, that it was not something that was raised by the Crown] but the determination was one of law. The Crown doesn't raise the appropriate law, that's not - I can't do anything about that, the law is what the law is. You've made a submission there was no case to answer. I determined there was, depending on the findings of fact by the jury, a case to answer."

115. Counsel for the applicant responded that he had been surprised by the determination of the judge to decide the no case submission on the basis of agency and again asked whether, if the judge would not discharge the jury, he would direct the jury on the nature of the agency which the judge considered was open to be found and upon the facts of which the jury would need to be satisfied before they could find that there was such an agency. The judge responded that he considered that it was open to find that there had been an agency by ratification . Counsel then asked whether in that case the judge would direct the jury as to the facts of which they would need to be satisfied before they could find that there was an agency by ratification The judge remarked that he would bring back the jury and "re-emphasise the issue of ratification if you want me to" .

118. No doubt buoyed by the judge's apparent enthusiasm for the doctrine of agency, and despite the absence of any mention of agency at any point in the Crown case, the prosecutor then volunteered for the first time in the trial that the Crown did rely upon the doctrine of agency, not only by way of ratification as identified by the judge but also on the basis that Mr Hoare had contracted with James Cranes with what the prosecutor described as the "apparent authority" of the applicant. That, added the prosecutor:

"...would be fully in conformity with Your Honour's explanation of the factual basis upon which that view could be achieved by the jury."

122. Thus assured no doubt the judge then brought back the jury and gave to them a further direction on agency as follows:

"Yesterday, I got to a stage in the end of my directions before we retired for the day, by directing you on the law as it relates to the extended definition of employee under s.21(3)(a) and (b) of the Act and I will ask you to get that out again. That is, p.3 of your documents there, that is of your Act documents, if I can put it that way. I told you that a common element in regard to Counts 1 to 3 against ACR, or in regard to ACR, was the need for you, members of the jury, to be satisfied beyond reasonable doubt that ACR was the employer of King and Reynolds as a result of the engagement of James Cranes and [that] the duties under s.21 extended to matters over which ACR had control. I went through yesterday the circumstances ... which I said in so far as the issue of engagement [was concerned] you would look to, to determine whether that engagement had taken place, and it has been suggested to me that I revisit those circumstances and I intend to do that. This concerns the definition in front of you, [s.21](3)(a), the `employee' includes an independent contractor engaged by an employer and any employees of the independent contractor, so in this instance you have to find beyond reasonable doubt as I said to you yesterday that ACR had engaged James Cranes and the employees of James Cranes, in this case King and Reynolds. Now as I said to you, I explained and put to you the law. It is a matter for you as to whether you find the necessary agency that I put to you, and I said to you, and I say again, as matter of law a corporation can engage an independent contractor via an agent. They can do that no doubt by giving a direct written authority to an agent to say go out and engage someone on my behalf, and we all know that business does not necessarily work like that, written instructions to do things. Business operates in a far more fluid situation. The Crown rely [on that] and say [of] the term `engage' in this case you should be satisfied that the engagement has taken place [in] the following circumstances. Mr Hoare entered into the original contract with ACR for the company that he represented, Associated Rigging, to supply the crane...On the day before, or early on the actual day, that is 29 October 1999, Mr Hoare decided that Associated Rigging cannot do the job. He engaged James Cranes via Mr Kelton [of James Cranes] to do the job, that is supply the crane. He phoned Pam at ACR to advise ACR that he had done that. He has told you in evidence that he had done that before and that it was a standard practice in the industry. Mr Martin, who you are aware is the job supervisor for all of ACR's jobs, had discussions with Palmer and said when the crane was arriving. Now it is a matter for you what you infer from that. If he tells Mr Palmer the crane was arriving about one o'clock it is a matter for you whether you can conclude, and I will take you to the issue of inferences later, but whether you can conclude from all those circumstances that Mr Martin as the supervisor knew about the substitution at that time, and discussed the state of the site with Palmer. Subsequently when the crane actually arrived on site, he had a further discussion with Palmer as to whether the operatives from the crane will go up on to the roof because the roof had not had the safety mesh fixed. Now again you would have to make a decision and determine [in] the circumstances: can you infer from that that he was aware at that time that the James Cranes Pty Limited crane was on site_._ To assist you in regard to Mr Martin's knowledge, you have the record of interview and I read to you the question relevant to that, and he said they had been cross-hired by Associated Rigging. It is a matter ultimately for you in the circumstances to determine whether, firstly, Mr Martin was acting for and on behalf of the company and whether Mr Martin by his actions for and on behalf of the company ratified the appointment of James Cranes made by Associated Rigging, that is the concept of agency, and what I said to you is those are the circumstances that as a matter of law are sufficient, if you found those, to establish an engagement in these circumstances, but I further told you that the actual decision on all of those facts and whether you are satisfied on those facts is a matter for you."

127. The applicant's principal contention is that it was wrong of the judge to introduce notions of agency after the Crown had closed its case. The applicant submits that the judge thereby effectively reformulated the Crown's case and that it was manifestly unfair to do so. The applicant says that if there had been any indication before that point that agency was to be relied upon, there would at least have been opportunity to cross examine both Mr Hoare and Mr Kelton and thereby negative any thought that Associated Rigging may have been acting on behalf of A.C.R. As it was, however, the applicant was deprived of any opportunity to deal with the matter.

130. In my opinion the judge did err in the way contended. Until his Honour invoked agency as a basis for the dismissal of A.C.R.'s no case submission there was not a hint of an allegation that A.C.R. and James Cranes were bound to each other through the agency of Associated Rigging. As appears from so much of the transcript as I have set out above, the Crown opened and ran its case on the basis that despite that James Cranes was a sub-contractor to Associated Rigging, and therefore not directly bound by contract to A.C.R., the sub-contract relationship was sufficient in the circumstances of the case to constitute an engagement for the purposes of s.21(3).

133. Evidently, the judge took a narrower view of "engagement". In his Honour's opinion, it was confined to a contract of engagement to which the employer was party. Thus, as it would seem, while his Honour accepted that s.21(3) extended to all contractors with whom the employer was in privity of contract in relation to matters over which the employer had control, he did not accept that the section was capable of application to any sub-contractor with whom the employer was not in privity of contract; even if the sub-contractor were retained in respect of matters over which the employer had control. That being his Honour's conclusion, the proper course would have been to uphold the no case submission. Instead, however, he introduced the allegation of agency and encouraged the Crown to adopt it as a basis for rejecting the no case submission. That added an element to the case that was new and unforeseeable and upon which A.C.R. was effectively denied of any chance to cross examine. Other things being equal that would have been most unfair. It is difficult to suppose even that a plaintiff in a civil proceeding would be permitted so to amend its case at such a late stage of the trial.[1] Given that this was a criminal trial there should have been no doubt about it.[2] The judge should not have introduced the concept of agency or allowed the Crown to rely upon it.

136. Some of the judge's remarks suggest that his Honour thought the introduction of agency to be permissible because it represented what he conceived of as "a determination of law" or because "it was not the function of the Crown to raise the appropriate law" or at least that "the Crown does not raise the law". But with respect, that was a misconception of the function of the Crown and of the nature of a presentment. In a criminal prosecution the Crown does "raise the law" and it is only that part of the law which it raises that an accused is required to meet.[3] It is the function of the Crown to frame the presentment and to that extent the juridical basis of the liability which is alleged.[4] The Crown must identify the offence which is alleged and provide the accused with the substance of the charge which he is called upon to meet and supply particulars necessary to enable him to prepare his defence.[5] Thus "[w]hen a person is charged on particulars giving one set of facts, he really cannot be convicted on proof of a different set of facts - at least not unless he has had a fair opportunity of defending himself on those different facts."[6]

139. So to say is not to overlook the distinction between ultimate facts and other material facts, or that it is only a change in ultimate facts as opposed to other material facts that is capable of constituting a change in cause of action or criminal liability. Nor is it to suggest that the distinction between the two is always clear.[7] On one view of this matter, the ultimate fact was the "fact" of engagement and the notion of agency was no more than a variation in other material facts. But the point here is no mere point of variance.[8] It goes further than the identification of a cause of action or the juridical basis of alleged criminal liability. It is concerned with the identification of the issues to be determined at trial and they may depend just as much upon mere material facts as upon those properly described as ultimate. As it was put by Evatt J in the oft cited passage from Johnson v Miller[9]:

"It is an essential part of the concept of justice in criminal cases that not a single piece of evidence should be admitted against a defendant unless he has a right to resist its reception upon the ground of irrelevance, whereupon the court has both the right and the duty to rule upon such an objection. These fundamental rights cannot be exercised if, through a failure or refusal to specify or particularize the offence charged, neither the court nor the defendant (nor perhaps the prosecutor) is as yet aware of the offence intended to be charged. Indeed the matter arises at an even earlier stage. The defendant cannot plead unless he knows what is the precise charge being preferred against him. If he so chooses, a defendant has a right to plead guilty, and therefore to know what it is he is being called upon to answer".[10]

143. Even in civil proceedings it is ordinarily thought to be a "dangerous thing after the close of the evidence to allow an amendment to raise a point founded on some oral statement by a witness, which may be perfectly complete so far as it is relevant to the issues which are being tried, but which if it were given with reference to entirely different issues would be incomplete. It is like allowing a party to raise a new case on appeal when the Court has not all the materials before it."[11] In criminal proceedings the position is surely more acute. Counsel for an accused are entitled to deal with the Crown's evidence on the basis that the issues are fixed. Thus they may leave evidence unchallenged when it appears innocuous as the issues stand. The Crown may be permitted to amend so long as amendment can be achieved without prejudice. But evidence given and left unchallenged or unanswered while the issues were in one form is capable of taking on a different significance if the issues change. Ordinarily therefore it is too late for the Crown to amend once the Crown has closed its case. And so it was in this case. The evidence given by Mr Hoare and Mr Klepner was likely to take on a markedly different significance according to whether it was alleged that the engagement was constituted by sub-contract or directly through an agent.

147. I have said that all other things being equal I would regard the introduction of agency as unfair. By that I meant that if "engagement" really were confined to privity of contract with the employer, the introduction of agency at the late stage of trial that it came in would have given to the Crown a second or additional chance to obtain a conviction which the Crown should not have had. It would have constituted such a significant change in the course of the trial and at such a late stage of it that in accordance with the principle acknowledged in King v R[12] the conviction could not stand.

150. For the reasons which are expressed below, however, I am of the opinion that "engagement" is not limited to privity of contract with the employer. It includes the engagement of a contractor under a contract with the employer and also the engagement of a contractor under a sub-contract with some other party in relation to matters over which the employer has control. Consequently, although the introduction of agency was wrong and unfair, I do not think that it could have made any difference. The evidence made plain that James Cranes was a contractor (regardless of whether its contract was made with A.C.R. through the medium of an agent or was only a sub-contract with Associated Rigging). Therefore, the jury properly instructed could not have come to any conclusion but that James Cranes were engaged by the applicant within the meaning of the section.

153. It follows in my opinion that the introduction of agency was not productive of any substantial miscarriage of justice.[13]

157. The applicant also argued that if the judge did not err by introducing the concept of agency, his Honour erred by failing to explain to the jury the legal basis of the sort of agency which was relied upon and to relate it to the evidence. Given the view which I take of the applicant's principal submission it is unnecessary to say much about that. There should not be any doubt, however, that where the Crown relies upon the doctrine of agency in order to establish an engagement for the purposes of s.21(3), the trial judge should identify to the jury the essential elements of the sort of agency which is alleged and relate them to the evidence in the same way that he or she would identify the elements of an offence and relate them to the evidence. So for example, if the Crown alleged agency by ratification, the trial judge should explain to the jury the principle that where an act is done purportedly in the name or on behalf of another by a person who has no authority so to act, the person in whose name or on whose behalf the act is done may ratify the act so as to make it have the effect it would have had had if done with his or her authority.[14] The judge should also identify who it is who is said so to have acted in the name of or on behalf of the principal and the acts which he or she is alleged to have done in the name of the principal, and the evidence of each.

160. According then to what is said by way of defence, the judge should explain to the jury that in order that a person may be held to have ratified an act done without his or her authority, it is necessary that, at the time of the ratification, the person should have full knowledge of all the material circumstances in which the act was done, unless the person intended to ratify the act and take the risk whatever the circumstances may have been[15], and that ratification may be express or implied.[16] The judge would need too to identify to the jury the acts, facts and circumstances said to constitute the ratification, and the evidence of them, and also what was said to show that the principal had full knowledge of all the material circumstances, or that it intended to ratify whatever the circumstances, and the evidence relied upon to support that contention. Much will depend upon the particulars of agency in any given case, but the Crown ought always be required to provide[17] full and precise particulars of agency whenever it is alleged.

164. It was further contended on behalf of the applicant that there is no place for agency in the application of the Act and that, even if there were, the evidence was incapable of establishing that James Cranes was engaged by an agent of the applicant within the meaning of s.21(3) of the Act.

167. I reject both of those contentions. I see no reason to suppose that a contractual engagement cannot be constituted by agency for the purposes of s.21(3), just as a contract can be constituted by agency for most other purposes.[18] Nor do I accept that the evidence which was adduced necessarily fell short of establishing that Associated Rigging had acted qua agent of the applicant in the engagement of James Cranes. The expression "cross-hiring" first used by Mr Martin in the record of interview and later repeated in the trial is certainly not inconsistent with agency, even though of course it is by no means determinative of the issue. The fact that the "cross-hiring" was reported to the applicant before the work was undertaken and the applicant's apparent approval of the arrangement are also not inconsistent with agency; although of course again by no means determinative. My assessment of the evidence is that the arrangement was more likely one of sub-contract than appointment by agent and, were it necessary to make a finding about it, I would so find. But other views are open. There is a basis to conclude that Associated Rigging acted in the appointment of James Cranes in the name of and with the actual or ostensible authority of the applicant, or that the applicant ratified the appointment. It is only for the reason that agency should not have been introduced into the trial in the way and at the stage that it was, and because of the inadequacy of the directions given on agency, that I see any problem with it.

171. I have already referred to the fact that the judge took a restricted view of the meaning of "engaged". His Honour told the jury that "The Oxford Dictionary defines the word `engaged' in the sense that is relevant here as `binding by a contract or a promise as a hiring or an employment'".[19] That formulation combined parts of two meanings given in the Oxford English Dictionary: number 4, which is "To bind by a contract or formal promise"; and number 5a, which is "To hire, secure the services of (a servant, workman, agent, etc.).", but it allowed nothing of number 5b, which is "To bespeak or secure (something) for one's own or another's use or possession" of which an example given is: "I...engaged carriers and ponies for its transport"; or of the wider sense referred to in number 7a of binding "by moral...obligation"; or of number 15, which is "To provide occupation for, employ (a person, his powers, thoughts, efforts, etc.)". It is perhaps also of some significance that the first and second meanings given in the Macquarie Dictionary[20] are "(1) to occupy the attention or efforts of (a person, etc.)"[which presents as close to meaning 15 in the Oxford], and "(2) to secure for aid, employment, use, etc.; hire" [which appears to be similar to number 5b in the Oxford], and that meaning 4a in the Merrian-Webster Online Dictionary is "to arrange to obtain the use or services of".[21]

174. Of course "engaged" is an ordinary English word. It follows according to some authorities that, unless the word is used in s.21(3) in a special sense, its meaning is strictly speaking a question of fact and thus one for the jury.[22] According to that view of the matter, so long as a judge considers that the facts of a case are capable of falling within the ordinary meaning of the word, he or she should simply leave to the jury the question of whether facts as found satisfy the section.[23] But in reality there are very few cases where the question of whether facts as found come within a statutory provision is purely a question of fact. As Mason J said in Hope v Bathurst City Council[24] many authorities can be found to sustain the proposition that whether the facts fully found fall within the provisions of a statutory enactment, properly construed is a question of law. It is in effect only in cases of statutes which involve very simple words permitting of only one ordinary meaning that the problem is purely factual.[25] In my opinion this is not such a case. The word "engagement" has a number of meanings and a number of those import legal conceptions upon which jurors would need guidance. It would be inappropriate and inadequate to leave the jury to decide the meaning for themselves. I consider that the meaning of the word in context is to be decided as a matter of law and that the jury are to be instructed as to what that meaning is and therefore of the facts of which they must be satisfied.

177. Reference was made in the course of argument to the penal nature of s.21 and it was submitted on behalf of A.C.R. that if there be any ambiguity about the meaning of the section, the ambiguity is to be resolved in favour of the subject. In a sense that goes without saying. That rule may have lost much of its importance in modern times, but it remains that if the meaning of a statute is truly ambiguous or doubtful the ambiguity or doubt must be resolved in favour of the offender.[26] It is, however, also a recognised principle of statutory construction that legislation which is concerned with furthering industrial safety is to be construed "so as to give the fullest relief which the fair meaning of its language will allow"[27], and the High Court has said that where the rule requiring strict construction of penal statutes collides with the need to construe industrial safety legislation effectually, the latter tends to prevail. As it was expressed by the majority in Waugh v Kippen[28]:

"[Where] the two principles of interpretation ...come into conflict...the court must proceed with its primary task of extracting the intention of the legislature from the fair meaning of words by which it has expressed that intention, remembering that it is a remedial measure passed for the protection of the worker. It should not be construed so strictly as to deprive the worker of the protection which Parliament intended that he should have...In such a context the strict construction rule is indeed one of last resort. Furthermore, the process of construction must yield for all purposes a definitive statement of the incidence of an obligation imposed on the employer. The legislature cannot speak with a forked tongue. Although the standard of proof applicable to criminal proceedings for a breach of the obligation will differ from that applicable to civil proceedings and the law may provide specific defences by way of answer to a prosecution which have no relevance to civil proceedings (as in Sovar v. Henry Lane Pty. Ltd. [1967] HCA 31; (1967) 116 C.L.R. 397), the elements that make up the obligation will be the same in each case. For example, in the present case one could not conclude in favour of an objective criterion of the likelihood of a risk of injury in the context of a criminal proceeding and a subjective criterion for the purposes of a civil action."

There is too the further consideration that guidance as to the intended meaning of a statutory provision is frequently to be derived from a consideration of the history of legislation and what it reveals about the intention of Parliament to extend or contract the range of protection afforded by earlier provisions.[29] As it appears to me, the history of s.21(3) is a powerful indicator of its proper construction.

182. Section 21 of the Act derives from s.11 of the Industrial, Safety Health and Welfare Act, 1981,[30] which was based upon ss.2 and 3 of the Health and Safety at Work etc Act 1974 (UK), which in turn were modelled upon an employer's common law duties of care[31] but which, in accordance with the recommendations of the Robens Committee[32], were intended to lay down "overriding duties, carrying the stamp of Parliamentary approval, [to] establish clearly in the minds of all concerned that the preservation of safety and health at work is a continuous legal and social responsibility of all those who have control over the conditions and circumstances in which work is performed"[33]. There are also some significant differences between the three sets of provisions.

"2. (1) It shall be the duty of every employer to ensure, as far as is reasonably practicable, the health, safety and welfare at work of all his employees. (2) Without prejudice to the generality of an employer's duty under the preceding subsection, the matter to which that duty extends include in particular- (a) the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health; (b) arrangements for ensuring, so far as is practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances; (c) the provision of such information , instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees; (d) so far as is reasonably practicable as regards an[y place of work under the employer's control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks; (e) the provision and maintenance of a working environment for his employees that is , so far as is reasonably practicable , safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work. (3) Except in such cases as may be prescribed, it shall be the duty of every employer to prepare and as often as may be appropriate revise a written statement of his general policy with respect to the health an safety at work of his employees and the organisation and arrangements for the time being the statement and any revision of it to the notice of all his employees. (4) [Provides for regulations for the appointment by trade unions of safety representatives] (5) [Provides for regulations for the election of safety representative by employees] (6) [Provides that it is the duty of employers to consult safety representatives] (7) [Provides for the appointment of safety committees]. 3. (1) It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risk to their health or safety. (2) It shall be the duty of every self-employed person to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that he and other persons (not being his employees) who may be affected thereby are not thereby exposed to risks to their health or safety. (3) In such cases as may be prescribed, it shall be the duty of every employer and every self-employed person, in the prescribed circumstances and in the prescribed manner, to give to persons (not being his employees) who may be affected by the way in which he conducts his undertaking the prescribed information about such aspects of the way in which he conducts his undertaking as might affect their health or safety."

189. Section 11 of the 1981 Victorian Act in effect combined the bulk of ss.2 and 3 of the UK Act, but imposed the duties on "occupier[s] of a workplace",[34] as opposed to "employers", and for the benefit of persons employed or engaged in or on that workplace", instead of "employees".[35] Thus it provided:

"11. (1) the occupier of a workplace shall ensure, so far as is reasonably practicable, the safety, health and welfare of person employed or engaged in or on that workplace. (2) Without prejudice to the generality of the provisions of sub-section (1), the matters to which that duty extends include in particular- (a) the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health; (b) arrangements for ensuring, so far as is practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances; (c) the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the safety and health of persons employed in or on the workplace; (d) so far as is reasonably practicable as regards a workplace under his control, the maintenance of it in a condition that is, so far as is reasonably practicable, safe, without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks; (e) the provision and maintenance of a working environment for persons employed in or on the workplace that is, so far as is reasonably practicable , safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work; (f) in such cases as are prescribed the appointment of safety supervisors who shall have such duties as are prescribed. (3) Except as prescribed, it shall be the duty of every occupier to prepare and as often as may be appropriate revise a written statement of his general policy with respect to the safety and health of persons employed in or on the workplace and the organization and arrangements for the time being in force for carrying out that policy, and to bring the statement and any revision of it to the notice of all persons employed in or on the workplace.[36]

193. The Occupational Health and Safety Act 1985 in effect divided back into two what s.11 of the 1981 Victorian Act had put together as one, and allocated one part to s.21 (which substantially reproduces s.2 of the UK Act), and the other to s.22 (which substantially reproduces s.3 of the UK Act). The Act also abandoned the premises approach and thus the idea of the "occupier of a workplace", and directed itself, like the UK Act, to "employers". I have set out s.21 above. Section 22 is as follows

"22. Every employer and every self-employed person shall ensure so far as is practicable that persons (other than the employees of the employer or self-employed person) are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer or self -employed person."

197. While s.11 of the 1981 Victorian Act remained in force, it was clear that the duties which it imposed upon an occupier of a workplace inured to the benefit of all persons employed or engaged in or on the workplace, regardless of whether they were employees strictly so called or otherwise engaged in or on the workplace. Contrastingly, in England, it was and it remains clear that the obligations which s.2 of the UK Act imposes upon an employer inure only to the benefit of employees strictly so called, and that it is s.3 that is directed to duties owed to persons otherwise engaged in the employer's undertaking (among other persons). The Robens Report recommended that the general duties laid down in s.2 in respect of employees should extend to the self-employed and to members of the public, but that recommendation was not taken up.[37] Consequently, the focus of the 1985 Victorian Act on "employers" (and the division of an employer's obligations between s 11 and s.12 of the Act) could perhaps be seen as an indication that Parliament intended to follow the English approach. That would suggest that s.11 is confined to employees strictly so called and that such obligations as may be owed by an employer to persons otherwise engaged are confined to s.12. [38]

200. It is, however, inherently improbable that the 1985 Act was intended to reduce the range of workers to whom workplace duties were owed.[39] To the contrary it was introduced into Parliament as "comprehensive, enabling... legislation" based upon the 1981 policy but designed to extend and improve the protection of worker health and safety achieved under the previous legislation. Moreover, the express extension in s.21(3) to independent contractors "engaged" by an employer is an explicit indication that it was intended that s.21 provide a broader range of cover than s.2 of the UK Act. The implication as it appears to me is that whereas previously the obligations imposed by s.11 of the 1981 Act were limited to the person having the management and control of the workplace, the obligations imposed by s.21 of the 1985 Act were intended to extend to any employer in respect of persons engaged in or on matters over which the employer has control.

203. That result accords with the Robens Report recommendation that:

"...it is ...undesirable that large groups of self-employed people - such as are to be found in the construction industry...should fall outside the scope of protective legislation so far as their own safety and health are concerned...".[40]

It is also consistent with the Robens Report recommendation,[41] echoed in the 1985 Act second reading speech, that there should be basic and overriding general duties which would establish clearly that occupational health and safety is a continuous legal and social responsibility of all those who have control over the conditions and circumstances in which work is performed.[42]

208. The intended result might have been achieved with greater clarity if s.21(3) had provided that an employer owes the duties to which it refers to any employee or contractor "engaged in or on" matters over which the employer has control. The change from the intransitive "engaged in or on" (which was used in s.11 of the 1981 Act) to "engaged by" (which is used in s.21(3) of the 1985 Act) is on one view of the matter not inconsistent with s.21(3) being confined to contractors in privity of contract with the employer. It might also be thought, perhaps, that one reason so to confine s.21(3) to employees and contractors with whom the employer is in privity was that an employer could otherwise be left saddled with obligations to contractors and employees of contractors over whom the employer has no enforceable means of control.

211. But the meaning of "engaged by" is not so intractable as to exclude sub-contractors[43 ] and the subtleties of intransitive verb forms are in this context hardly convincing. Furthermore so far from reducing the scope of s.21(3) to relationships founded on contractual privity, the adoption of the expression "engaged by" appears to me to have been grounded in an intention to give statutory recognition to the common law that where contractors are engaged to do work which might as readily have been done by employees, the employer has an obligation to prescribe a safe system of work for the benefit of the independent contractors.[44] The duty was later described in Stevens v Brodribb Sawmilling Co Pty Ltd[45] as one which arises "if an entrepreneur engages independent contractors", and it may be seen in Brodribb, and in the judgements of the English Court of Appeal in McArdle v Andmac Roofing Co, upon the reasoning of which the decision in Brodribb appears largely to be based, that the duty as so described is not confined to contractors with whom the employer is in privity of contract. The informing notions of the decisions, and I would add the only apparent limitations, are proximity and foreseeability.

214. The suggested fear of obligation without control is equally unpersuasive. The obligations imposed by s.21(3) are in terms confined to matters over which the employer has control and, in context, it is difficult to think that it should matter whether that control is derived contractually or by some other means. Just as importantly, the fact that s.21(3) expressly provides for employees of an independent contractor engaged by the employer is itself a positive statement of intention to extend the operation of s.21(3) to persons engaged in or on matters over which the employer has control, but with whom the employer is not in privity of contract. It makes plain that an employee's s.21 duties extend not only to an independent contractor engaged by the employer, but also to employees of the contractor.

217. Those being the facts, I consider that it would make little sense to interpret "engaged by" so as to restrict the operation of the section to contractors with whom the employer is in contractual relations. It does, however, make evident sense, and in my view it was intended that the expression include the engagement of any contractor in relation to matters over which the employer has control, either (a) under a contract entered into between the contactor and the employer; or (b) under a contract entered into between the contractor and some other person. Thus in my opinion a contractor could just as well be regarded as engaged by the employer in relation to matters over which the employer has control if the contractor were engaged directly by the employer under a contract with the employer, or by another contractor under a sub-contract, or by a sub-contractor under a sub, sub-contract, or under a sub, sub, sub-contract or some remoter species of sub-contract; regardless of the layers of contractual relations that might separate the contractor from the employer.

220. It may also be noted that the Occupational Health and Safety (Commonwealth) Act 1991 operates in a similar fashion. That act is understandably restricted to cases in which the employer is the Commonwealth or a Commonwealth Authority and is concerned only with premises in connection with which an undertaking is being carried on by the Commonwealth or a Commonwealth Authority. The drafting of the Commonwealth Act is also different to the Victorian Act. But it otherwise follows the pattern of the Victorian legislation. Section 16 of the Commonwealth Act corresponds to s.2 of the UK Act and thus to s.21 of the 1985 Victorian Act, and s.17 of the Commonwealth Act corresponds to s.3 of the UK Act and thus to s.22 of the 1985 Victorian Act. Then in the same way as s.21(3) of the 1985 Victorian Act extends the benefit of s.21 duties to independent contractors and their employees in relation to matters over which the employer has control, s.16(4) of the Commonwealth Act extends the s.16 duties to contractors in relation to matters over which the employer has control,[46] and s.4 defines "contractor" as a natural person who performs work on Commonwealth premises in connection with an undertaking being carried on by the Commonwealth or a Commonwealth authority, "under a contract between the Commonwealth [or the authority] and that person or any other person (whether a natural person or not)".[47]

224. It was contended on behalf of the applicant that if James Cranes were a contractor engaged by the applicant within the meaning of the section, the judge had misdirected the jury on the matters over which the applicant had control. The argument was in substance that the judge had departed substantially from the case as disclosed in the particulars and thereby caused the trial to miscarry.

227. The particulars which were given of Count 3 are set out above at paragraph [8]. The parts of the charge that are relevant started as follows:

"I want to take you to the elements which make up each charge and relate each such element to the manner in which the case has been presented by the prosecutor and relate also to you the arguments of defence counsel....You will see at the top of the Act that what we are dealing with is the Occupational Health and Safety Act 1985. You will see there, if I take you to s.21(1) that [it] imposes the general duty which has criminal sanctions put upon it. So that the duty is, as I read out to you, ...[His Honour then read out the sub-sections 21(1) and (2) and continued]...Now, you will see because of the fact that we have only got (a), (b) and (e)...they are the only ones you have to deal with...In so far as (2)(a) is concerned, that talks about a system of work being provided, a safe system of work and that particular section makes up Count 3 against ACR...In s.21(1) you see the second line there, you see this word `practicable', and you go down to (2) and (2)(a), you see the word `practicable` again...The Act assists you with what that word means by defining at the start of the Act... [His Honour then took the jury through the definition of `practicable' in s.4 of the Act and instructed the jury that the prosecution bore the burden of persuading them that there was a more practicable method than was used of giving instructions or providing a safe system of work. After then explaining that the section only applied to an employees and to independent contractors engaged by the employer, and their employees, His Honour continued]... Assuming that you satisfied on the evidence that there was an engagement, an engagement through the agency of Associated Rigging, the next aspect you will see in that definition is: `(a), `employee' includes an independent contractor engaged by an employer and any employees of the independent [contractor]' and then the words used are: `and', so you have got to be satisfied on both aspects, [and then]: `(b) the duties of an employer under [those] sub-sections extend to [such] an independent [contractor] and the independent contractor's employees in relation to matters over which the employer... has control'. Now Mr Priest has put to you that the lift of steel in this instance based upon industry practice was a circumstance over which the crane company, the crew had control alone and the dogman had control of the lift itself. In so far as this issue of control, in so far as the extended definition is concerned, the [prosecutor] puts it to you this way: These matters, the word `matters' in this instance is to be given a wide meaning and it is wide enough to cover any activity or thing in the working environment which might involve a risk to safety and the health of the worker, in this instance, King and Reynolds, assuming you have found firstly that they have been engaged. The [prosecutor] says to you that the matters - see the word `matters' on that second last line of (b), `in relation to matters over which the employer has control', the matters over which the employer, ACR, has control are, pursuant to Exhibit C, one of the contracted items in Exhibit C, that is the contract with the owner company, is to erect safety mesh at the site. It is submitted by the [prosecutor] to you that the employer, ACR, has control over its contractual obligation, that is, the obligation to erect the safety mesh and in so far as that is concerned, any risks to health and safety brought about by the failure to complete that work is a risk that must rest with ACR. The second matter over which the [prosecutor] says they have control ... is the building of the roof. Again you will see in Exhibit C that they have contracted to build the roof, the purlins and the gutters. That is ACR. The [prosecutor] says..., it is not enough in those instances for you [ACR] to say that you have looked after the safety of your workers, you have got to look after the safety of all of the workers who are involved in the erection of a matter that you have control over, that is, you have got control of erecting the roof and you have got to take safety precautions for them. The act says that an employer in these circumstances must provide for the safety of independent contractors or their employees in the making of the roof."

231. His Honour next referred to part of the record of interview of Mr Martin of A.C.R. in which Mr Martin said in effect that A.C.R. was assiduous in providing for the safety of its own employees but that when it engaged experts like a crane company to carry out work in which A.C.R. did not profess or have any expertise, it left the safety of the men involved to the experts that it had engaged. His Honour then continued:

"In so far as this is concerned, what the [prosecutor] says to you is that, having control over the erection of the roof means, pursuant to this extended definition of employee, that whether Mr Martin [of ACR] was ignorant of it or not, ACR had an obligation to comply with the Act in so far as the independent contractor's employees were concerned, that is, King and Reynolds, and they [ACR] had to comply with the Act in the circumstances as set out. So Mr Foreman and members of the jury, it will be necessary for you in regard to Counts 1, 2 and 3 as a preliminary question to be satisfied [that] this extended definition of employee is satisfied, that is that the extended definition relates to the employees of an independent contractor, James Cranes, who were engaged by ACR and that the matter[s], being the erection of a safety mesh and the roof, were matters over which the employer, ACR, had control. In those circumstances the Act provides that the precautions to be taken under s.21 apply to King and Reynolds. Now as I say, that is an explanation of the law to you, of what you have got to be satisfied of. The decision is yours."

235. At that stage the jury retired for the evening and the next morning the judge resumed the charge with the redirection on the subject of engagement to which I have already referred. His Honour then reminded the jury of what he had said to them the previous day about the prosecutor bearing the burden of satisfying them that it was practicable to provide a system of work that was safer than the one in fact used, and continued:

"...As I said, the Act defines `practicable` and it is necessary for you, members of the jury, to have regard to each of the elements which make up the definition of `practicable' as is set out in the material that I have given you. You assess the facts and the evidence and you relate such to the elements as I explain them and then you determine the issue of practicability. You make the determination from the evidence and you come to a determination after analysing those matters accordingly. The questions of safety and practicability in many cases raise issues of common sense rather than any special knowledge.[48] It is essentially asking you to bring to this task the joint experiences of all of you. Your common sense built on your experiences that you have built throughout your life, you combine them as a jury as a whole and you bring that to your task. And you will see in the definition of `practicability' that I have given you that it requires you to have regard to defined aspects and those are set out there and those defined aspects are detailed for you from paragraphs (a) to (d). Now with those in mind, I will take you then to the specifics of this first count..."

239. The judge next took the jury through the particulars of Count 1 and related them to the way in which the prosecutor had put the case and to what defence counsel had said in response, and in the course of that exercise his Honour instructed the jury that they could not convict on Count 1 unless all members of the jury were satisfied beyond reasonable doubt on the basis of the same particular that the prosecutor had made out the elements of the offence.[49] His Honour dealt then with Count 2 in a similar fashion, by reference to the particulars and the submissions of counsel. His Honour turned then to Count 3, as follows:

"Coming, then, to Count 3. Again, to give you the tie-up with the statute itself, this is a count that is laid under s.21(2)(a) and it is essentially described by learned prosecutor to you as the safe system of work.",

and after referring the jury to the way in which Count 3 was formulated in the presentment, he continued:

"Then we go to the particulars of a safe system of work... (1) and (2) are really introductions. (1) ACR through its servant, Laurence Palmer requested Matthew King to place roofing sheets on the roof of the subject premises. The placement requested caused or permitted by ACR constituted an unsafe system of work in that it exposed Matthew King to the risk of injury through falling or electrocution. Paragraph (3) deals with the issue of falling. It was practicable - and this is the matter that has to be proved to you by the prosecutor in the circumstances of this case, taking you back and analysing, remembering the way you look back that I have explained to you - the allegation is that it was practicable to eliminate or alleviate the risks of King falling by covering the roof with safety mesh or using an individual [fall arrest system]. That is again a particular which relies upon the Code of Practice for Safe Work on Roofs set out, being Exhibit B at p.31..."

"Members of the jury, you have to determine those matters and you have to take those into account, all of [the] issues...it is necessary for you to be satisfied beyond reasonable doubt of...particular (3), because really (2) simply says: "Placement constituting an unsafe system of work in that it exposed Matthew King to the risk of injuries from falling... (3) sets out the issue of falling. You have to be satisfied in regard to that particular beyond reasonable doubt."

249. The matters with which his Honour had to deal in the course of the charge on Count 3 were both complex and conceptually difficult. If I may say so with respect, the result which he achieved on that part of the charge was admirable for its comprehensiveness and for the way in which it reduced difficult legal concepts to terms which the jury were likely to comprehend. I do not consider that the charge on Count 3 diverged from the particulars or was otherwise at fault.

252. The applicant's argument is that the particulars confined the matters over which the applicant was alleged to have control to "the handling transporting and placement of roofing sheets," and that the judge went beyond that by charging the jury that the matters over which the applicant was alleged to have control were the erection of safety mesh at the site and the building of the roof. But I do not accept that the particulars did so confine the matters the subject of control. The particulars which were given were of the acts, facts and circumstances alleged to constitute the applicant's failure to provide and maintain plant and a system of work that were so far as practicable safe and without risk to health. The essence of them was an allegation that it was practicable to eliminate or alleviate the risk of King falling by covering the roof with safety mesh or using an individual fall arrest system. It was necessarily implicit in that allegation that the placement of safety mesh and the use of an individual fall arrest system were matters within control of the applicant. Consequently, inasmuch as the charge directed the jury to the installation of safety mesh and the use of an individual restraint system, it was in my opinion strictly in accordance with the particulars.

255. His Honour's reference to "the construction of the roof" might be seen in isolation as a suggestion that there were other unspecified activities over which A.C.R. were alleged to have control. Thus, if the jury found that A.C.R. had done or failed to do any of those other things, A.C.R. was liable to be convicted on Count 3 on an unidentified basis. But I do not think that one could reasonably attribute such a meaning to the observation unless it be read in a vacuum, divorced from the context in which it was made. And of course a charge is not to be read in that fashion. Instructions and directions given by a trial judge derive their meaning from the conduct of the trial and the questions raised by the Crown and by defence counsel.[50]

258. Here the principal questions raised by the Crown and defence counsel were whether A.C.R. so much retained control over the construction of the roof as to insist that there be no lift until safety mesh was installed or individual restraint systems employed, or whether A.C.R. had by the appointment of an expert crane company acquitted itself of responsibility to ensure that mesh was installed before the lift or else that an individual restraint system be used. I have set out in paragraph [57] above his Honour's reference to counsel's competing contentions on the point. In the circumstances there could be no doubt in the minds of the jury that it was those questions to which his Honour was addressing the reference to the construction of the roof. The matter is put beyond doubt by the fact that his Honour emphasised and re-emphasised that the question for the jury on Count 3 was whether it was practicable to eliminate or alleviate the risks of King falling by covering the roof with safety mesh or using an individual restraint system.

262. It was contended for the applicant that the evidence was incapable of sustaining a finding of control. The thrust of that contention was that there was uncontested evidence that A.C.R. relied upon an expert crane company to carry out a task in which A.C.R. had no expertise, it was industry practice for the crane crew to take control of the site once they arrive, the dogman is invariably in control of the lift, it was thus up to the dogman as to whether the lift would proceed and how the lift was to proceed and, if the dogman had determined that it was not safe to proceed, A.C.R. would have to have abided by that determination. It was said to follow that upon on any sensible view of the matter A.C.R. was plainly not in control of matters surrounding the lift.

265. I reject the contention. Whatever might be said about other aspects of the lift, there can be no doubt upon the evidence that A.C.R. did have control over the erection of safety mesh. As Mr Martin said, A.C.R. would not have allowed its own employees to work on the roof erecting roof sheets unless the mesh had first been put in place, because that is what the Code required and it was a practicable way of guarding against the possibility of a worker falling from the roof. What Mr Martin apparently did not understand, but the judge correctly pointed out, was that A.C.R. owed that duty as much to the employees of contractors as to its own employees. A.C.R. could have used its own employees to lift up the sheets from the ground to the roof, if necessary one by one. Had it done so, it would have been bound to do what was practicable to ensure that the mesh was in place or else that the employees were fitted with individual restraints. The fact that A.C.R. chose a crane company instead of employees to lift up the sheets can in principle make no difference. A.C.R. owed to the employees of contractors engaged upon the roof the same duty as it owed to its own employees to do what was practicable to guard against a fall from the roof. In the circumstances that meant doing what was practicable to ensure that safety mesh was installed before the work proceeded or else doing what was practicable to ensure the use of individual restraints.

268. No doubt the fact that James Cranes was an expert crane company and the deceased was an expert dogman did make a difference in some respects. For as Stuart-Smith, LJ observed in R v Associated Octel Ltd[51]:

"...the question of control may be very relevant to what is reasonably practicable. In most cases the employer/principal has no control over how a competent or expert contractor does the work. It is one of the reason why he employs such a person - that he has the skill and expertise, including knowledge of appropriate safety precautions which he himself may not have. He may be entitled to rely on the contractor to see that the work is carried out safely, both so far as the contractor's workmen are concerned and others, including his own employees or members of the public; and he cannot be expected to supervise them to see that they are applying the necessary safety precautions. It may not be reasonably practicable for him to do other than rely on the independent contractor. But there are cases where it is reasonably practicable for the employer to give instructions how the work is to be done and what safety measures are to be taken. Examples of such cases are the Swan Hunter case... The question of what is reasonably practicable is a matter of fact and degree in each case. It will depend on a number of factors so far as concerns operations carried out by independent contractors; what is reasonably practicable for a large organisation employing safety officers or engineers contracting for the services of a small contractor on routine operations may differ markedly from what is reasonably practicable for a small shopkeeper employing a local builder on activities on which he has not expertise. The nature and gravity of the risk, the competence and experience of the workmen, the nature of the precautions to be taken are all relevant considerations."

For example it could hardly be said that A.C.R. had control over the siting of the crane or the method of lifting or that it was practicable for A.C.R. to do much if anything about either of those matters. Prima facie those things were so much within the sphere of the contractor's expertise and beyond that of A.C.R. as to mean that A.C.R.'s obligations in respect of those activities could well have been discharged by warning the contractor of any special danger of which A.C.R. knew or should have known.

273. But the erection of the safety mesh was a matter of a different order. The need for it was well known to A.C.R. and in any event was obvious.[52] The evidence shows that it could have been installed before the work began and indeed that it would have been installed before work began, were it not for the fact that one of the scissor lifts was out of service. A.C.R. recognised that it had a duty to its employees to ensure that the mesh was installed before work began. Section 21(3) dictates that it owed the same duty to the employees of contractors engaged to work on the roof. A.C.R. could not have absolved itself of its duty to its employees by leaving it up to them to decide whether they were willing to take the risk. In the same way A.C.R. could not absolve itself of its duty to employees of contractors engaged to work on the roof by leaving it up to them to decide whether they were willing to take the risk. It could perhaps have absolved itself of responsibility by doing whatever was practicable to ensure that any workers on the roof were fitted with individual restraint systems. But the evidence shows that in this case it did nothing of the kind.

276. Each case must of course depend upon its own facts. There will be cases where accidents occur without fault on the part of the employer. But employee carelessness is not of itself a defence for failing to do what is practicable to guard employee health and safety. To the contrary the duties for which s.21 provide, like the common law duties on which they are based, are to a considerable extent designed to protect employees and the employees of contractors from the consequences of their own inattention, carelessness and sometimes foolishness.[53] While therefore there will be cases where an employer cannot be expected to guard against the acts and omissions of the contractors whom he engages or of their employees, in the circumstances of this case I consider that it was well open to the jury to be satisfied that A.C.R. did not do what was practicable in respect of the erection of the mesh to guard the health and safety of the employees of James Cranes.[54]

280. It was finally contended for the applicant that the verdict of guilty of Count 3 was inconsistent with the verdict brought in by the jury at the same time that James Cranes was not guilty of a similar count.

283. I see no necessary inconsistency. I assume that the jury took the view that James Cranes did not have control over the installation of the roof mesh and that they had done what was practicable to ensure that King used an individual restraint system when feasible by instructing him to do so before sending him out to the job. Contrastingly, as I would see it, the jury concluded that the applicant did have control over the erection of the safety mesh and that it had not done what was practicable to ensure that it was installed before the lift began.

287. For the reasons given I consider that the judge was in error in introducing the idea of agency and in the directions which his Honour gave to the jury concerning agency. But I consider that no substantial miscarriage of justice occurred.

290. In the result I would dismiss the application for leave to appeal.

[1] Commonwealth v Verwayen (1990) 170 C.L.R. 394 at p.456_; National Australia Bank Ltd v Maher (No 2)_ [1999] VSCA 189; [1999] 3 V.R. 589 at p.598 [31] per Callaway, J.A.; EFM Pty Ltd v New Zealand Steel (Aust) Pty Ltd (No 2) BC 200004126 at [21], per Warren, J; cf Howarth v Adey [1996] VICSC 4; [1996] 2 V.R. 535 at p.543, per Winneke, P.

[2] King v The Queen [1986] HCA 59; (1986) 161 C.L.R. 423 at p.428, per Deane, J. and at p.432, per Dawson, J.; R v GAS [1998] 3 V.R. 862 at p.878, per Batt, J.A.

[3] The King v Weaver [1931] HCA 23; (1931) 45 C.L.R. 321 at p.334; R v Moore [1998] 1 Qd. 252 at p.263.

[4] Crimes Act 1958, ss.366 and 369 and Schedule 6, Rule 3; R v Hoessinger (1992) 62 A.Crim.R.146 at p.150; and see Fox, Victorian Criminal Procedure, 11 Ed., 2002 at [8.2.2] ff.

[5] John L. Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 C.L.R. 508 at p.519; Bunnings Forest Products Pty Ltd v Tanya Gai Shepherd, WAFC 5/5/98, BC 9801616 at p.13. per Anderson J; R v Turner [2001] WASCA 344; (2001) 25 W.A.R. 258 at [23]; cf. RSPCA.WA Inc v Hammarquist & Anor [2003] WASCA 35 at [49]; and see Freckelton, Indictable Offences in Victoria, 4th Ed. at [6.230].

[6] Bunnings Forest Products Pty Ltd v Tanya Gai Shepherd, ibid. at p.14.

[7] cf. Ruzeu v Massey-Fergusson (Aust) Ltd [1982] VicRp 54; [1982] V.R. 529 at pp.533-4.

[8] cf. Director of public Prosecutions v Webb [1993] 2 V.R. 413 at p.417.

[9] [1937] HCA 77; (1937) 59 C.L.R. 467.

[10] ibid at pp.497-498 ; see also, for example, Stanton v Abernathy (1990) 19 N.S.W.L.R. 656 at p.670, per Gleeson, CJ; R v Hoessinger [1992] NTSC 23; (1992) 62 A.Crim.R. 146 at p.150, per Gallop, J; Walsh v Tattersall (1996) 188 C.L.R. 77 at pp.95-86, per Kirby, J; cf. Gigante v Hickson [2001] VSCA 4; (2001) 3 V.R. 296 at 302 [19] per Batt, J.A.

[11] Gordon v MacGregor [1909] HCA 26; (1909) 8 C.L.R. 316 at p.321.

[12] [1986] HCA 59; (1986) 161 C.L.R. 423 at p. 428.

[13] cf. R v Franklin [2001] VSCA 79; (2001) 3 V.R. 9 at p.28 [53], per Brooking, J.A. and at p.58 [141], per Ormiston, J.A.

[14] Bowstead and Reynolds on Agency, 17th Ed, Article 13; Dal Pont_, Law of Agency_ at [5.8].

[15] Bowstead, Article 16; Dal Pont at [5.18].

[16] Bowstead, Article 17; Dal Pont at [5.26] and [5.27].

[17] Either in exercise of the Court's inherent jurisdiction or pursuant to s.5(1) of the Crimes (Criminal Trials) Act 1993.

[18] cf. Ex parte Aston Investments Pty Ltd; Re Hall (1959) 60 S.R.(N.S.W.) 620 at p.626.

[19] cf. R v Chatzidimitriou [2000] VSCA 91; (2000) 1 V.R. 493 at p.499 at [16] and p.509 [47].

[21] For the reference to which I am indebted to Ormiston, J.A.

[22] Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 C.L.R. 389 at p.395.

[23] Hope v Bathurst City Council [1980] HCA 16; (1980) 144 C.L.R. 1 at p.7, per Mason J, Vetter v Lake Macquarie City Council (2001) 202 C.L.R. 439 at pp.450-1 [25]-[27], per Gleeson, C.J. and Gummow and Callinan, JJ. and at p.477 [108], per Hayne J.

[24] [1980] HCA 16; (1980) 144 C.L.R. 1 at p.7, which was referred to with approval by Gleeson, C.J. in Vetter, supra.

[25] cf. Cozens v. Brutus [1972] UKHL 6; [1973] A.C. 854 at p.861, per Lord Reid; S v Crimes Compensation Tribunal [1998] 1 V.R. 83 at p. 89, per Phillips, J.A.

[26] Beckwith v The Queen [1976] HCA 55; (1976) 135 C.L.R. 569 at p.576; Deming No 456 Pty Ltd v Brisbane Unit Development Corp Pty Ltd [1983] HCA 44; (1983) 155 C.L.R. 129 at p.145.

[27] Bull v Attorney-General (NSW) [1913] HCA 60; (1913) 17 C.L.R. 370 at p.384, per Isaacs, J.

[28] Waugh v Kippen [1986] HCA 12; (1986) 160 C.L.R. 156 at pp.164-5; Pearce & Geddes, Statutory Interpretation in Australia 5th Ed. at [9.9].

[29] John Burke Ltd v The Insurance Commissioner [1963] Qd.R. 587 at p.593; Beckwith v The Queen [1976] HCA 55; (1976) 135 C.L.R. 569 at pp.578 ff; per Mason, J.; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 C.L.R. 297 at 311ff, per Stephen, J.; cf. Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 C.L.R. 355 at pp.366-388; Pearce & Geddes, at [3.28].

[30] At one time said to have been enacted in implementation of the International Labour Organization, ILO Convention 155, "Occupational and Health Safety and the Working Environment" "[t]o prevent accidents and injury to health arising out , linked with or occurring in the course of work, by minimizing as far as is reasonably practicable, the causes of hazards." See, the second reading debate concerning the Occupational Health and Safety Bill, Hansard, Assembly 3 July 1985 at p. 1069-1070.

[31] Report of the Committed on Safety and Health at Work 1970-72, London: HMSO ("the Robens Report") at [128]-[132]; R v Swan Hunter Shipbuilders Ltd. [1982] 1 All E.R. 264 at p.270, per Dunn, L.J; and see Creighton & Rozen_, Occupational Health & Safety Law in Victoria_, 2nd Ed. at [535]-[540] and [551]-[557].

[32] The Robens Report, ibid and at [161]; Creighton & Rozen, Ch 5; Richard Johnstone, Occupational Health and Safety, Federation Press, 2003 at p.20.

[34] "Occupier" was defined in s.3 of the Act, in relation to a workplace, to mean "a person who has the management or control of the workplace". Such a "premises approach" was rejected by the Robens Report as unsatisfactory in principle: Robens Report at [166].

[35] See Johnstone, Occupational Health and Safety, at p.23.

[36] The requirements for the appointment of safety representatives by trade unions were dispensed with. Section 12 provided for the election of safety representatives by persons employed in on or on the workplace. Section 14 imposed on employees duties similar to those referred to in s. 3(3) of the UK Act.

[37] Robens Report at [173]; Johnstone, Occupational Health and Safety at p.27.

[38] cf. Director of Public Prosecutions Reference No 1 of 1992 [1992] VicRp 71; [1992] 2 V.R. 405.

[39] cf. John Burke Ltd v The Insurance Commissioner [1963] Qd.R. 587 at p.599.

[41] Robens Report at [41] and [161]; and see Johnstone, Occupational Health and Safety at p.22.

[42] Hansard, Assembly, 30 May 1985 at p.58.

[43] CIC Insurance Ltd. v. Bankstown Football Club Ltd (1997) 187 C.L.R. 384 at p.408; cf Mount Beauty Gliding Club Inc & Anor v Jacob [2004] VSCA 151 at [22] per Callaway, J.A.

[44] McArdle v Andmac Roofing Co [1967] 1 W.L.R. 356 at 361 (CA).

[45] (1986) 160 C.L.R. 16; see also Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 C.L.R. 21 at pp.40-41 [43]-[44]; New South Wales v Lepore [2003] HCA 4; (2003) 212 C.L.R. 511 at p.581 [196].

"The obligations of an employer in respect of the employer's employees that are set out in subsections (1) and (2) apply also in respect of persons who are contractors of that employer but only in relation to: (a) matters over which the employer has control; or (b) matters over which the employer would have had control but for an express provision in an agreement made by the employer with such a contractor to the contrary, being matters over which the employer would, in the circumstances, usually be expected to have had control."

[47] Section 4 defines "contractor" as follows:

"'contractor' means a natural person, other than a person who is employed by the Commonwealth or by a Commonwealth authority, who:

(a) performs work on Commonwealth premises in connection with an undertaking being carried on by the Commonwealth, being work that is being performed, or that is connected with work that is being performed, under a contract entered into between the Commonwealth and that person or any other person (whether a natural person or not); or (b) performs work on Commonwealth premises in connection with an undertaking being carried on by a Commonwealth authority, being work that is being performed, or that is connected with work that is being performed, under a contract entered into between the authority and that person or any other person (whether a natural person or not)."(My emphasis).

[48] cf. Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 C.L.R. 249 at p. 260; Creighton & Rozen 2nd Ed, at [519].

[49] cf Trotter v. R. (1982) 7 A.Crim.R. 8 at p.18; R v Walsh [2002] VSCA 98, (2002) 131 A.Crim.R. 299.at [32]ff.

[50] Barker v The Queen, [1983] HCA 18; (1983) 153 C.L.R. 338 at p.368 per Brennan and Deane, JJ., citing R v Stoddart (1909) 2 Cr.App. R 217 at p.247.

[51] [1994] 4 All E.R. 1051 at p.1063; aff'd [1996] UKHL 1; [1996] 1 W.L.R. 1543.

[52] cf. Chugg v Pacific Dunlop Ltd (No2), [1999] 3 V.R. 934 at pp.964-5, [133]-[135], per Ormiston, J., in diss; Creighton & Rozen, at [514].

[53] McLean v. Tedman [1984] HCA 60; (1984) 155 C.L.R. 306 at pp. 311-313; R v Australian Char Pty Ltd [1999] 3 V.R. 834 at p.850 [65].

[54] Stratton v. Van Driel Ltd. [1998] VSC 75 at [21]; cf McArdle v Andmac Roofing Co [1967] 1 W.L.R. at 356 at p.365.