Riley v Australian Grader Hire Pty Ltd

APPELLANT: Ms P E McDonald of counsel Carroll & O'Dea, Solicitors (Mr Gerard Phillips) LEGAL REPRESENTATIVES: RESPONDENT: Mr B Cross of counsel Solicitor: Mr David J H Hooper

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH

CORAM: WRIGHT J, President WALTON J, Vice President KAVANAGH J

INSPECTOR PETER RILEY v AUSTRALIAN GRADER HIRE PTY LTD

Application for leave to appeal and appeal against a decision of Industrial Magistrate P O'Shane given on 1 August 2000 in Matter No 4503/00

JUDGMENT OF THE COURT (Extempore) [2001] NSWIRComm 31 1 These proceedings involve an application for leave to appeal and, subject to leave being granted, an appeal against a decision of Ms P O'Shane , Local Court Magistrate sitting as an Industrial Magistrate, given on 1 August 2000. Her Worship gave the respondent the benefit of section 10 of the Crimes (Sentencing Procedure) Act 1999. 2 The proceedings before her Worship related to a prosecution pursuant to s 15(1) of the Occupational Health and Safety Act 1983 in which it was alleged that the respondent, who was the defendant in those proceedings, being an employer, did fail to ensure the health, safety and welfare at work of all of its employees and, in particular, Ms Sharon Leslie Taylor, in that the defendant failed to provide such information, instruction and training as was necessary to ensure the health and safety at work of all of the defendant's employees. 3 The respondent entered a plea of guilty to the charge. After having heard submissions from the respondent's representative, her Worship found that the offence was proven but, having deemed it inexpedient to inflict a punishment, dismissed the charge pursuant to the provisions of s 10 of the Crimes (Sentencing Procedure) Act . 4 In reaching this decision her Worship made observations in relation to the actions of the injured employee, including: I don't know what further you would want to put to me, Mr Hooper, but I must say I have some sympathy for the point of view expressed by the defendant in respect of Ms Taylor's apparent lack of common sense. I'm flabbergasted that anyone would try to reverse the machine down a steep hill. 5 Her Worship then went on to state: Of course the Act doesn't exonerate the employer. The point is that although clearly the victim in this case, Ms Taylor, had some training in the operating of that machine. The fact is, notwithstanding that the operating manual does not carry any instruction for driving it downhill ... 6 Her Worship was concerned that there was no advice in the vehicle's instructional manual about going downhill. This, however, did not mean there was an excuse on the part of the employer. In her Worship's opinion, employers must: ... be very lateral in [their] thinking and creative in [their] imagination as to what are the likely scenarios to arise and the fact of the matter is people do stupid things. We have to protect them from their own stupidity and we have to protect ourselves from their stupidity. 7 In making her final decision her Worship then stated: However, suffice to say that I note that the defendant comes before the Court without any priors. I certainly note the circumstances surrounding this particular incident. I've made my comments about it.

Having regard to those matters, whilst I am satisfied the offence is proved, I deem it inexpedient to inflict punishment under the provisions of section 10 of the Crimes (Sentencing Procedure) Act. The information is dismissed.

At that stage the defendant had not asked for s 10 to be applied, nor had the prosecutor made any submissions as to its application. 8 The requirements of leave with respect to matters such as the present were determined in Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 and adopted in Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464. Further, the Full Bench confirmed the need for leave to be granted in s 197 appeals in light of recent amendments to the Justices Act 1902 in Blue Mountains Disability Services Ltd v Stinson (1999) 92 IR 246. 9 Leave to appeal is to be granted if the Full Bench is of the opinion that the matter is of such importance that leave should be granted. The question of leave has been commented upon recently by a Full Bench in Sykes v Alan East Pty Limited (formerly National Meat Supplies Pty Ltd) [2000] NSWIRComm 1130 where the Full Bench reiterated the comments of the Full Bench in Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380. We also refer to the decision of the Full Bench in Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) (2000) 99 IR 159 at [12] and [13]. 10 While we consider that the issues raised by the appeal as to the construction of s 10 of the Crimes (Sentencing Procedure) Act may be important, they do not in our view attract the grant of leave to appeal in the present matter. This is not an appropriate case to decide that matter. In particular, the distinction sought to be drawn by the appellant between that section and s 556A of the Crimes Act 1900 is not relevant to determining whether the discretion residing in the Court by those provisions should have been exercised, having regard to the facts and circumstances of this case. However, the remaining issues raised by the appellant do warrant the grant of leave. 11 Similar considerations arise in this matter to those considered by Full Benches of this Court in WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64 and McCarthy v Sell & Parker Pty Ltd [2000] NSWIRComm 273. As was submitted by counsel for the appellant, the Court has heard more detailed argument than was available in McCarthy v Sell & Parker Pty Ltd . It is appropriate to affirm the statements of principle set out in that judgment. That consideration is a factor which also warrants the grant of leave to appeal. Additionally, similar factors arise in this matter as were considered by this Court in Corinthian Industries . 12 In our view, her Worship erred in failing to advise the prosecutor (and the defendant) of her intention to make a determination under s 10 of the Crimes (Sentencing Procedure) Act and in failing to provide an appropriate opportunity to make submissions as to that matter (and in the case of the prosecutor, submissions at all). 13 Furthermore, her Worship's decision demonstrates error by failing to treat the exercise of her discretion under s 10 of the Crimes (Sentencing Procedure) Act in a manner consistent with the earlier judgment of the Full Bench in Profab. The exercise of that discretion must be considered as extraordinary and highly exceptional (see also McCarthy v Sell & Parker Pty Ltd ). 14 The use of s 10 of the Crimes (Sentencing Procedure) Act in this matter resulted in a situation where there was a manifestly inadequate penalty. In the result we have determined that the appeal should be upheld and that this is an appropriate matter for us to substitute our own decision for the decision reached at first instance. We would wish to emphasise at this juncture that the objective seriousness of this offence is relatively low. Furthermore, there are subjective features (including the plea of guilty) warranting a significant discount at the highest level. Our decision will reflect those conclusions. 15 Further, as we have observed, we consider that the discretion to make a determination under s 10 of the Crimes (Sentencing Procedure) Act wholly miscarried in this matter. First, there was inadequacy of reasoning as to the exercise of such discretion as would be necessary and appropriate. Second, we consider that it was not reasonably open to her Worship to conclude that there were objective features of the offence which could have led to no penalty being imposed upon the respondent. The magistrate appears to have reached her conclusion as to the objective seriousness of the offence, having regard to the lack of common sense of the injured worker. It is reasonably clear from her decision that it was concluded that the conduct of the injured worker effectively removed or minimised the liability of the respondent in relation to the lack of training or instruction afforded the employee. This was wrong in principle. Section 15 of the Occupational Health and Safety Act requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing. We note the following observations of Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257: Much of what was urged by Mr King was directed to showing that the worker who was killed knew of, and therefore ought to have avoided the exposed electrical connections. In one sense such a submission militated against the position of the defendant; the very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry. 16 Similarly, it is important for employers to actively ensure that instructions given are both sufficient for and complied with by employees. We refer to the judgment of Walton J, Vice President in WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Australia) Pty Limited (Unreported, 19 October 1999) as follows: In any event, the mere stipulation of procedures and instructions to carry out the work may not be enough to satisfy the requirements of s15 of the Act. The employer should ensure that procedures and instructions are actively and positively complied with by employees.

In Dawson (at 121 and 125) the failure by a foreperson to supervise a qualified and experienced linesperson to the extent of instructing the employee as to the safest available method (where the employer had laid down a procedure for work and various methods of performing the work were available) would constitute a breach of s15 (although in that matter it was found the failure was that of the foreperson and not the employer).

I note that in an English High Court case, Pope v Gould (HM Inspector of Health and Safety, 20 June 1996, unreported but cited at p44 of Redgrave's Health and Safety, 1998, Third Edition) it was held in England, under the equivalent of s15, that it is not a sufficient defence for an employer to demonstrate that he had instructed the employee to operate machinery in a particular way and the employee had not followed his instructions. There, it was held, that the legislative provision was not concerned solely with the giving of instructions; rather it imposes upon the employer positive duties in relation to ensuring safe systems of work and safe machinery. It was held not to have been sufficient for instructions of a health and safety nature merely to have been given to employees; an employer must also ensure that those instructions are carried out (see also Haynes at 181-182, Kirkby at 53 and McMartin at 8). 17 Before turning to the question of penalty, we should deal with the issue of double jeopardy. In that respect we take the same approach as did the Full Bench in Profab at [45] to [46] as follows: 45 We consider that it would be appropriate in the circumstances of this case to give appropriate weight to the double jeopardy faced by the respondent to this appeal. In doing so, we do not intend at present to lay down any ruling as to that issue and specifically state that it is an issue which will, in an appropriate case, need to be considered in principle by a Full Bench of this Court in appeal proceedings under the Occupational Health and Safety Act . We have taken the view we have in this case, not only because of its own special circumstances and the particular subjective circumstances of the respondent, but because the Full Bench of this Court in WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Allen Taylor & Co Limited accepted that double jeopardy was a relevant consideration in prosecution appeals under the present legislation in a case involving a corporation.

46 We consider a penalty should be imposed in this matter and have given due weight to all the subjective considerations upon which the respondent is entitled to rely, as referred to in his Honour's judgment and the respondent's submissions on appeal. In particular, regard has been had to the nature of the respondent and of the industry in which it operates, its good record of industrial citizenship and safety and its pro-active approach to safety in an industry which is not always known for its safety consciousness. Appropriate weight should be given to the respondent's early plea of guilt, and the consideration of double jeopardy. Also, as earlier indicated, we have approached this matter in terms of the objective seriousness of the offence on a view of the facts most favourable to the respondent. …

18 We propose to resentence the respondent, having regard to the objective seriousness of the offence and taking into account the other matters referred to earlier. We consider that the appropriate penalty is $7,000. 19 As to costs, we consider that the usual costs order at first instance should apply and that there should be no order as to the costs of the appeal. The respondent has asked for a certificate under the Suitors' Fund Act 1951 in the event that the appeal was upheld on a question of law. One of the considerations arising in this matter relates to a denial of procedural fairness, which is an error of law (see, for example, Connelly v Department of Local Government (1985) 11 IR 362). Hence we certify the issue of a certificate under the Suitors' Fund Act , if the respondent is otherwise entitled to such a certificate.

Orders 20 We therefore make the following orders in disposition of the appeal: 1. Appeal against the decision of Magistrate O'Shane given on 1 August 2000 upheld and the orders made by her Worship are set aside.

2. In lieu of the orders made by her Worship which have been set aside, the respondent is: (a) convicted of the offence charged; (b) fined the sum of $7,000 with a moiety of such penalty to the appellant; and (c) the appellant shall have costs on the usual basis for the proceedings at first instance. 3. There shall be no order as to the costs of the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.