R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181

R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181 - VSCA 2006 case summary — Zoe

[20]

13 Podger did not use the scaffolding to remove the iron sheeting. It would have been awkward to do so, as the scaffolding was not directly below the sheeting that was to be removed. The edge of the scaffolding was about 40 centimetres horizontally out of line with the closest edge of the opening.

14 Roach then returned to the roof with the angle grinder. He could not use the scaffolding platform because he was unable to reach the downpipe from the scaffold. Roach stepped over the opening in the roof (created by Podger's removal of iron sheeting) to straddle it in order to get at the downpipe. As he did so, his foot slipped on the edge of the opening. He fell through the opening, holding the angle grinder in his hands. He fell through the insulation, creating a hole of about one metre by half a metre in size.

15 Roach fell about three metres on to the concrete floor below. He landed on his feet and then on his backside. Roach lay on the floor in shock for a time, then stood up and checked himself for injuries. He was taken to the first-aid room. Bacon was notified and went to see Roach in the first-aid room. Roach then drove himself to his own doctor. He had suffered bruising and lacerations to his foot, his arms and back, and shock. He was off work for a week.

16 On the following morning, Bacon directed Podger to go back to the roof and finish the job. Bacon did not give Podger any safety instructions or put in place any additional safety procedures or fall protection. Podger continued to work on the roof and on the scaffolding for about one and a half hours until two union officials arrived. They stopped the work on the roof because of safety concerns.

17 The union officials spoke to Bacon on arrival. They inspected the site and then went to the site office and asked Bacon if there was a JSA for the work that had been undertaken by Roach on the roof. Bacon told them that Roach had completed the JSA and that both Roach and Podger had been inducted into the JSA. When the officials asked for the JSA, Bacon was not able to produce it. They then left the site office and rang Roach to check if there was a JSA. They then returned to the site office. Bacon handed them a JSA. The officials observed that the handwriting on the JSA looked like Bacon's handwriting.

18 At about this point the WorkSafe inspector arrived. After inspecting the site and taking photographs, the inspector spoke to Bacon, who admitted that he had lied to the union officials and that he had himself completed the JSA after the accident. Bacon repeated these admissions in front of the union officials, stating that he had lied as he did not want himself or CICG to get in trouble with WorkSafe.

19 The inspector then issued a prohibition notice under s.44(1) of the 1985 Act, prohibiting any work on the site at heights where a person could fall two metres or more. Given the terms in which s.44(1) confers power, the issue of the prohibition notice must have followed the inspector's forming the opinion that there was (or would be) "an immediate risk to health and safety".

The employer's responsibility

20 The learned trial Judge was told that the company -

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21 In its submissions in this Court, CICG referred again to "principles of attribution" which, it said, fixed the company with liability for breaches of the 1985 Act by its employee, Bacon. The applicable principles were said to derive from a number of well-known authorities (to which we will refer below), beginning with Tesco Supermarkets Limited v Nattrass.[2] In oral argument, Mr Priest submitted that CICG's plea of guilty reflected this concession, which had foreclosed what could otherwise have been - so he submitted - "a healthy debate as to whether Bacon was or was not the company".

22 These submissions all proceed from a false premise. No question of attribution arose - or could have arisen - in this proceeding. It is necessary for us to explain why that is so. As is apparent, CICG claims credit for making the concession that "Bacon was the company" while, at the same time, suggesting that it is somehow unfair that the company should be held responsible in this way.

23 Had CICG contested the charge, the Court would have had to decide whether the company had failed to provide and maintain a safe working environment and, in particular, a safe system of work. The Court would not have been called on to decide whether, as a matter of law, the acts and omissions of Bacon were the acts and omissions of the company itself. Rather, the Court would have had to decide whether, on the evidence of Bacon's acts and omissions, and the resultant serious risks to which first Roach and then Podger were exposed, the company had done everything (reasonably) practicable to ensure the safety of its employees.

24 The legislative regime for workplace safety is quite different from that which was in issue in Tesco.[3] Breach of s.21(1) of the 1985 Act did not depend on proof of mens rea. (The position is unchanged under the 2004 Act). Notwithstanding the practicability qualification, the liability is properly to be regarded as absolute, since there is no room for a defence of honest and reasonable mistake.[4] Unlike the position in Tesco, there is no "due diligence" defence, nor is it a defence to show that the breach was "due to the act or default of another person".

25 It is immaterial at what level in an organisation the safety breach occurs. Adapting what was said by the English Court of Appeal in R v British Steel Plc, an employee -

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29 The majority of the New Zealand Court of Appeal in Linework preferred to uphold the conviction of the employer company on the ground that the acts and omissions of the person in effective charge of the work site - in that case, the foreman, who had supervisory responsibility - should be attributed to the employer.[14] In the view of the majority, the actions of the foreman were "intended to count" as the actions of the company. That phrase comes from the illuminating analysis of the rules of attribution by Lord Hoffman (speaking for the Privy Council) in Meridian Global Funds Management Asia Limited v Securities Commission.[15]

30 As Lord Hoffman explained in Meridian, the question whether the application of a statutory provision to a company involves rules of attribution - and, if so, what form those rules should take - is a question of construction of the relevant statute. For the reasons set out above, on the proper construction of s.21 of the 1985 Act no rules of attribution are called for. The only question is whether the employer company has done everything that it was (reasonably) practicable to do to ensure the safety of its employees. If not, the company has breached its duty. It is irrelevant to the question of liability where the failure occurred.

31 How and why the failure occurred is, however, relevant to sentencing. In assessing the company's culpability, it will be relevant to know, for example, whether the breach was the result of a failure to adhere to systems put in place by management or, alternatively, was the result of a failure by management to establish adequate safety systems and procedures in the first place.

32 Rules of attribution are of particular importance where the statutory provision imposing liability, or creating a defence, turns on the existence of a state of mind. Meridian itself was just such a case, turning as it did on whether the company could be said to have had relevant knowledge. The 1985 Act had its own attribution provision of this kind, limited to the question of intention. Thus, s.52(2) provided:

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47 Under cross-examination, Mr McDonald of CICG said that there was no record of any checks having been made at the site, in the period before the accident, to make sure that JSAs were being filled out.[22] According to Podger's deposition, until this accident occurred JSAs were only infrequently filled out on this site. It was only after Roach's fall that they became mandatory. McDonald was unable to dispute this statement.

48 As this case illustrates, the formal adoption of a satisfactory safety management system will not have the beneficial effects intended unless it is accompanied by the employer's active implementation of the system in the workplace.[23] The employer's duty will not be discharged simply by creating a safe system of work. The obligation requires the employer to ensure "that procedures and instructions are actively and positively complied with by employees".[24] Not only must employees be appropriately trained but there must be ongoing supervision and compliance audits, to ensure that the system is being applied in practice. Employee compliance with the safe system of work must be constantly monitored by the employer.

49 An employer should recognise that it is common experience that human error will be encountered in the workplace. Error can range from inadvertence, inattention or haste through foolish disregard of personal safety[25] to deliberate non-compliance with the prescribed safe system of work. In R v Australian Char Pty Ltd[26] and DPP v Amcor Packaging Pty Ltd,[27] this Court has referred with approval to the observations of Harper, J. in Holmes v R.E. Spence & Co Pty Ltd[28] that an employer's responsibility for the safety of its workers will not be discharged unless the employer takes "an active imaginative and flexible approach to potential dangers in the knowledge that human frailty is an ever-present reality".[29]

50 The events of this day suggest a foolish or deliberate disregard of the company's safety management system by three of its employees, as a consequence of the company's failure over time to supervise and monitor its employees sufficiently in the course of the performance of their work and its over-reliance upon the discretion of employees in matters of safety. The conclusion is inescapable that its employees' non-compliance with its safe system of work was not the consequence of a sudden lapse of judgment by them during these two days. The company's duty was to ensure that its employees worked in accordance with the safety instructions that they had been given. The company's submission, that it could have done no more to comply with its statutory obligation to provide a safe system of work, cannot be sustained.

51 Once again, the Code of Practice is very clear about the training and supervision recommended where roof work is involved. Where the employer is a medium-sized building company (which is how CICG was described to the judge), these provisions should be well-understood and rigorously enforced.

At a glance

Court

Decision date

Before

Source

Judgment (70 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (7)