Neville George Hetherington (the defendant) is charged with an offence that as a person who had a health and safety duty under section 27 Work Health and Safety Act 2011 (the Act), he failed to comply with that duty and thereby exposed Cecil Wilkinson to a risk of death or serious injury contrary to section 32 of the Act.
In separate proceedings, Hetherington Plumbing Services Pty Ltd (HPS) is charged with an offence that as a person who had a health and safety duty under section 19(1) of the Act, it failed to comply with that duty and thereby exposed Cecil Wilkinson, a worker engaged in the business or undertaking to a risk of death or serious injury contrary to section 32 of the Act.
It is common ground that the defendant is an officer of HPS.
On 21 May 2016 Mr Wilkinson was working as a dogman on the roof of a premises in Redlands Road at Corowa (the premises). HPS had been engaged to replace the roof at the premises and had engaged Dunns Twin City Cranes to provide a crane and appropriate staff to assist with lifting materials on and off the roof. At about 10.30am, Mr Wilkinson was performing his duties on the roof when he fell through a section that could not support his weight. He fell 6m to a concrete floor and sustained injury. At the time of the fall, the defendant and another HPS employee were working on the roof and wearing safety harnesses that were not attached to an anchor point on the roof. Mr Wilkinson was wearing a safety harness but did not attach it to an anchor point because he was not working within 2m of the edge of the roof. No-one present informed Mr Wilkinson that there were areas of the roof that were not safe to stand on. The prosecution alleges that Mr Wilkinson was engaged by HPS or his activities were influenced or directed by it.
The defendant moves on a Notice of Motion seeking an order that the charge be quashed for failing to identify a charge known to the law. In the defendant's reply submissions and in argument the defendant alternatively sought a permanent stay of the prosecution.
The defendant contends that the pleading against the defendant alleging a breach of section 27 of the Act merely substantially repeats the pleading alleging a breach of section 19(1) of the Act against HPS. The duties are not the same and accordingly the particulars of breach of duty pleaded in [13]-[14] of the Summons are irrelevant and do not disclose an offence known to the law or assist the defendant in understanding the case he is required to meet.
The prosecutor contends that the particulars in [13]-[14] of the Summons come within the requirements of section 27(5) of the Act, because the definition of due diligence is an inclusive one and because some of the matters pleaded are expressly provided for in section 27(5). The failures of the PCBU and an officer amounting to breach may be the same or overlap. If there is some deficiency in the pleading, the prosecutor is entitled to amend the Summons, because there is no illegality or fundamental unfairness preventing a fair trial.
For the purpose of determining the Notice of Motion I will assume the prosecution case at its highest is contained in the Statement of Facts filed with the Summons.
[2]
The relevant law
Section 15 Criminal Procedure Act 1986 provides that the term 'indictment' includes any other process by which criminal proceedings are commenced.
[3]
Application to quash the Summons
An accused may seek to quash an indictment if it has on its face a serious defect: R v Rushton [1967] VR 842.
The functions provided for by an indictment include:
1. Informing the court of the precise identity of the offence it is required to deal with, John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 at 519;
2. Providing the accused with the substance of the charge which he or she is required to meet, including identifying the essential factual ingredients, John L at 519;
3. Enabling the court to ensure that only relevant factual evidence is admitted and identify the appropriate legal instructions, S v The Queen (1989) 168 CLR 266 at 284-285
4. Determining the availability of a plea of autrefois acquit and autrefois convict, S v The Queen at 284 and Walsh v Tattersall (1990) 188 CLR 77 at 90, 110-111;
5. To invest the court with jurisdiction to hear and determine the prosecution, John L at 519.
The functions of an indictment described above have critical significance to the accused receiving a fair trial and subject to sections 16 and 17 Criminal Procedure Act 1986, the failure to provide for such matters is likely to lead to invalidity of the indictment: R v Janceski (2005) 64 NSWLR 10 at 22 per Spigelman CJ.
In a prosecution of an offence under the Act, the prosecution must identify the measures that should have been taken and prove them beyond reasonable doubt: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [37].
[4]
Application for a permanent stay of the prosecution
The Court has inherent jurisdiction to stay proceedings that constitute an abuse of process: Walton v Gardiner (1993) 177 CLR 378, 392-3; Jago v District Court (NSW) (1989) 168 CLR 23; Barton v The Queen (1980) 147 CLR 75.
The power is discretionary and will only be used to stay criminal proceedings in the most exceptional circumstances: Barton at 116; Jago at 31 per Mason CJ, at 75 per Gaudron J.
The phrase 'abuse of process' encapsulates all cases in which the processes and procedures of the court may be used as instruments of injustice or unfairness: Walton at 393. The question the Court must answer is whether, in all the circumstances, the continuation of proceedings would involve unacceptable injustice or unfairness: Walton at 392.
Fairness or unfairness defies analytical judgment and involves a large content of intuitive judgment: Jago at 57. The onus is on the applicant to show that the disadvantage or prejudice that they will suffer is unacceptable to the extent that a trial would be unfair: Barron v Attorney-General (1987) 10 NSWLR 215.
The categories of factual situations in criminal proceedings which may warrant a consideration of the possibility of abuse of process are not closed: Walton at 393.
A permanent stay in criminal proceedings will only be justifiable where there is a fundamental defect going to the root of the trial of such a nature that there are no measures that a trial judge can take in the conduct of the trial to relieve against its unfair consequences: Barton at 111; Jago at 34 per Mason CJ, 49 per Brennan J, and 77-78 per Gaudron J.
The power to grant a stay must be exercised in accordance with two fundamental policy considerations that:
the public administration of justice requires the Court to protect its functions by preventing abuse of process; and
unless the court does so there will be an erosion of public confidence in the Court: Williams v Spautz (1992) 174 CLR 509, 520.
In determining the question of whether to grant a permanent stay the Court must balance the interests of the accused, the public interest of the community that those charged with serious criminal offences are bought to trial and those guilty are convicted, and the need to maintain public confidence in the administration of justice: Walton at 395-6; Jago at 33 per Mason CJ, and at 49-50 per Brennan J.
[5]
Amendment of the Summons
Section 21 Criminal Procedure Act 1986 provides the court power to amend an indictment, if having regard to the merits of the case the amendment can be made without injustice.
[6]
Scope of section 19(1) of the Act
Mr Wilkinson was a worker as defined by section 7 of the Act. For the purpose of this application I have assumed that he was engaged by HPS or that his activities were influenced or directed by HPS.
The content of the duty is set out in section 19 of the Act, which relevantly provides:
(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:
(a) workers engaged, or caused to be engaged by the person, and
(b) workers whose activities in carrying out work are influenced or directed by the person,
while the workers are at work in the business or undertaking.
(3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable:
(a) the provision and maintenance of a work environment without risks to health and safety, and
(b) the provision of safe plant and structures, and
(c) the provision and maintenance of safe systems of work, and
(d) the safe use, handling and storage of plant, structures and substances, and
…
(f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and
(g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.
The requirement to 'ensure' means to guarantee or make certain: Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 470.
Safety cannot be ensured if a risk to the health and safety of a worker exists. The existence of the risk constitutes a breach of section 19 of the Act. It is not necessary that there is an accident or that a person is injured: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [13]. The relevant risk for the commission of the section 32 offence is the risk of death or serious injury.
The word "risk" is not defined in the Act. Risk means the mere possibility of danger and not necessarily actual danger: R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 and Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94 at [67].
A duty imposed to ensure health and safety requires the person to eliminate risks to health and safety so far as that is reasonably practicable, and if that cannot be done, to minimise those risks so far as is reasonably practicable: section 17 of the Act. The risk should be identified with sufficient precision to determine if it was reasonably practicable to eliminate it, or minimise it.
'Reasonably practicable' is defined in section 18 of the Act. The Court must take into account and weigh up all relevant matters including;
1. the likelihood of the risk concerned occurring, and
2. the degree of harm that might result from the risk, and
3. what the defendant knows or ought reasonably to know about;
1. the risk, and
2. ways of eliminating or minimising the risk, and
1. the availability and suitability of ways to eliminate or minimise the risk, and
2. after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with either of those options, including whether the cost is grossly disproportionate to the risk.
The state of knowledge applied to the definition of practicable is objective. It is that possessed by persons generally who are engaged in the relevant field of activity, and should not be assessed by reference to the actual knowledge of a specific defendant in particular circumstances: Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33].
The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 at [37] per Gleeson CJ, Gummow and Hayne JJ.
The statutory duty is not limited to simply preventing foreseeable risks of injury. The duty is to protect against all risks, if that is reasonably practicable. Reasonably practicable means something narrower than physically possible or feasible: Slivak at [53] per Gaudron J.
The words "reasonably practicable" indicate that the duty does not require a duty holder to take every possible step that could be taken. The steps to be taken in performance of the duty are those that are reasonably practicable for the duty holder to achieve the provision of and maintenance of a safe working environment. Bare demonstration that a step might have had some effect on the safety of a working environment does not, without more, demonstrate a breach of the duty: Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 at [15], [33] and [38] per French CJ, Gummow, Hayne and Crennan JJ.
[7]
Scope of section 27 of the Act
Section 27 of the Act relevantly provides:
(1) If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation.
…
(4) An officer of a person conducting a business or undertaking may be convicted or found guilty of an offence under this Act relating to a duty under this section whether or not the person conducting the business or undertaking has been convicted or found guilty of an offence under this Act relating to the duty or obligation.
(5) In this section,
"due diligence" includes taking reasonable steps:
(a) to acquire and keep up-to-date knowledge of work health and safety matters, and
(b) to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations, and
(c) to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking, and
(d) to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information, and
(e) to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act, and
For the purposes of paragraph (e), the duties or obligations under this Act of a person conducting a business or undertaking may include:
• reporting notifiable incidents,
• consulting with workers,
• ensuring compliance with notices issued under this Act,
• ensuring the provision of training and instruction to workers about work health and safety,
• ensuring that health and safety representatives receive their entitlements to training.
(f) to verify the provision and use of the resources and processes referred to in paragraphs (c)-(e).
A breach of the duty imposed by section 27 of the Act, is punishable as an offence under section 32 of the Act if the breach exposes an individual to a risk of death or serious injury.
The elements of the offence alleged to have been committed by the defendant are:
Element A The defendant was an officer of HPS.
Element B HPS owed a health and safety duty to Mr Wilkinson.
Element C The defendant failed to exercise due diligence to ensure that HPS complied with its duty.
Element D The defendant's failure exposed Mr Wilkinson to a risk of death or serious injury.
The scope of the duty imposed by section 27 of the Act has not been authoritatively determined. The following matters appear to be non-controversial.
First, the section 27 duty is radically different to its predecessor section 26 Occupational Health and Safety Act 2000, which deemed a director on proof of a contravention by the company. [1] The first report of the Stewart-Crompton Panel (the First Report) described section 27 as requiring an officer to be proactive to ensure compliance by the company, making the officer liable for their own acts or omissions. The approach was intended to require proactive steps by the officer for compliance by the company, with the duties of care placed on the company. [2]
In McKie v Al-Hassani [2015] ACTIC 1 Chief Industrial Magistrate cited with approval the following relevant passage from Barry Sherriff and Michael Tooma, (Understanding the Model Work Health and Safety Act) (Wolters Kluher):
The approach taken by the model WHS Act, however, emphasises the corporate governance responsibilities of officers. The personal liability in that context reflects culpability of company officers in failing to meet the corporate governance responsibilities by preventing corporate misconduct. Consistent with this rationale, officers under the model laws will have a duty to ensure due diligence. Thus, their attributed liability is transformed into a positive duty to ensure compliance through sound corporate governance.
Second, 'due diligence' is defined to include taking reasonable steps to achieve the objectives set out in section 27(5)(a)-(f), but the definition of due diligence is not closed. 'Due diligence' in the context of the Corporations Act 2001 (Cth) has been defined as a minimum standard of behaviour involving a system which provides against contravention of relevant regulatory provisions and adequate supervision ensuring that the system is properly carried out: Universal Telecasters (Qld) Ltd v Guthrie (1978) 18 ALR 531.
In Inspector Kumar v Ritchie [2006] NSWIRComm 323 at [153] Haylen J considered that the due diligence defence provided for by section 26 Occupational Health and Safety Act 2000 required a systematic approach designed to achieve compliance with the regulatory scheme and to prevent contravention of it, that the system was appropriate and not a paper system designed to pay lip service to the Act and that the system was properly enforced to achieve compliance with the Act.
In WorkCover Authority v Daly Smith Corporation [2004] NSWIRComm 349 at 152] Staunton J described the due diligence defence as requiring that the person had put in place a system to identify and manage the risk to safety at the employer's worksite. It involved ensuring that the workers had the skills to perform the work and ensuring that they complied with the safety standards established, by formal and informal review and auditing.
In Inspector Aldred v Herbert [2007] NSWIRComm 170 at [25] Backman J held that it was sufficient due diligence for directors to address safety matters at board meetings, to require managers to report on safety matters and to monitor safety as an issue.
In Inspector Hayes v Santos and Lorenzo [2009] NSWIRComm 163 at [188] Boland P was not satisfied that the due diligence defence was established because there was no review or auditing process to ensure that the supervisors and managers were acting in compliance with the written policies.
Third, the exercise of due diligence and what are reasonable steps will be determined to some extent by the officer's place in the corporate structure and their ability to control the objectives outlined in section 27(5)(a)-(f).
[8]
Other matters
A duty provided for by the Act is not transferable: section 14 of the Act.
A person does not conduct a business or undertaking if they are solely engaged as a worker or an officer for that business or undertaking: section 5(4) of the Act.
A person may have more than one duty by virtue of being in more than one class of duty holder: section 15 of the Act.
More than one person can concurrently have the same duty and each duty holder must comply with that duty to the standard required: section 16 of the Act. If more than one person has a duty for the same matter, each person retains the responsibility for the person's duty in relation to the matter and must discharge the person's duty to the extent to which the person has the capacity to influence or control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity: section 16(3) of the Act.
A term of any agreement or contract that purports to exclude limit or modify the operation of the Act, to modify a duty owed under the Act or transfer to another person any duty owed is void: section 272 of the Act.
[9]
The matters pleaded by the prosecution
In the proceedings against HPS, the prosecutor has pleaded in [10(a)-(g)] of the Summons the reasonably practicable measures that HPS should have implemented to avoid the risk posed to Mr Wilkinson.
Those particulars are pleaded in [13(a)-(g)] of the Summons in these proceedings as things that the defendant failed to take reasonable steps to ensure that the company should have implemented.
Those particulars are repeated in [14(a)-(g)] of the Summons in these proceedings as the basis of the reasonable steps the defendant should have taken in exercising due diligence. Each of the particulars is expanded to include an allegation (in italics) that the defendant should have alternatively arranged for someone to ensure that each step was taken. Paragraph 14 of the Summons provides:
(a) Ensuring, or arranging for someone to ensure, that workers undertaking the work on the roof were using a fall-arrest system, such as a harness attached to an appropriate safety line or anchor point;
(b) Advising workers, or arranging for someone to advise workers not to commence work on the roof until the safety measures outlined in the job safety analysis completed for the roof work were in place, in particular scaffolding beneath the roof.
(c) Developing, implementing and enforcing, or arranging for someone to develop implement and enforce a Safe Work Method Statement which identified the hazards and measures to control the risks associated with the work in accordance with clause 200 of the Work Health and Safety Regulation 2011.
(d) Ensuring, or arranging someone to ensure, all workers undertaking roof replacement works as height at the premises had been provided with and reviewed the Safe Work Method Statement for the work prior to being allowed to commence working upon the roof.
(e) Instructing workers, or arranging for someone to instruct, in particular Mr Wilkinson, as to the risks of working at height and upon the roof of the premises and measures to control the risks prior to allowing them to commence work on the roof, including
The presence and location of non-weight bearing materials upon the roof, such as those known as mini-orbs;
The requirement to wear a safety harness attached to a safety line or anchor point when working on the roof.
(f) Ensuring or arranging for someone to ensure all workers, and in particular Mr Wilkinson, were appropriately trained in working at heights prior to allowing them to work upon the roof.
(g) Providing, or arranging for someone to provide, adequate supervision to workers including Mr Wilkinson, working on the roof to ensure that workers were using fall arrest systems and/or not working in locations upon the roof where there was a risk of falling through the roof.
The question posed on this application is do these particulars, if proven on the evidence amount to a contravention of section 27 of the Act. If not, then the Summons is liable to be quashed or the subject of an application to amend.
[10]
Consideration
The defendant was present on the roof of the premises on the day of the incident and this is relevant to his ability to influence and control the work.
The section 27 duty imposed on officers is not to take all reasonably practical measures to ensure compliance by the PCBU and an officer is not required to ensure the health and safety of workers.
An officer is required to adhere to a minimum standard of behaviour involving a system which ensures compliance by the PCBU with its duties and obligations under the Act and to provide adequate supervision to ensure that the system is properly carried out. The minimal standard of behaviour and the system is to take reasonable steps to include the objectives in section 27(5)(a)-(g).
Section 27 does not require that the officer undertake the reasonably practicable measures on behalf of the PCBU. A breach of section 27 by an officer is not dependent on a breach of another duty owed by the PCBU.
In the present case, the defendant owed a duty as an officer of HPS and as a worker under section 28 of the Act. The defendant did not owe a duty as a PCBU, by operation of section 5(4) of the Act.
The defendant and HPS owe different duties. I am not sure that the relevant duties are 'for the same matter'. This was not the subject of extensive argument before me and it is therefore inappropriate to decide the point at the interlocutory stage of the proceedings. It may be that section 16(3) has no operation in the present case, but it can be accepted that the duties owed by the defendant and HPS may overlap and that each must discharge their duty to the required standard.
All of the case law on due diligence and the matters in section 27(5)(a)-(g) refer to or are relevant to the systems put in place by an officer to ensure compliance by a PCBU, including obtaining the necessary knowledge of the Act and operation to implement such a system. Notwithstanding that the matters referred to in section 27(5) is not exhaustive, I am satisfied that any other relevant matters must in some way relate to the system implemented and enforced by an officer to ensure compliance by the PCBU.
For the purposes of this application, the system could have been a simple one, including the defendant himself giving appropriate instructions, training and providing adequate supervision at the premises. However, that conclusion should not be regarded as final because I had not heard the evidence and it is based on the prosecution's case at its highest.
Before turning to each of the pleaded particulars I note that each includes an allegation that the defendant, in the alternative, should have arranged some other person to undertake the relevant measures. In my view, that amounts to a delegation of the duty imposed on the defendant and if it was proven that the defendant did arrange for someone attend to the relevant matters, it would not amount to a discharge of the duty owed by the defendant. Accordingly, those allegations are embarrassing and each of them as they appear in [14] (which I have identified in italics) in [53] above of the Summons should be struck out.
I will now turn to the pleaded particulars.
Paragraph 14(a) of the Summons alleges a failure to ensure that workers were using a fall arrest system. This particular implies that the allegation is that the defendant should have personally ensured Mr Wilkinson was using a fall arrest system. It is not stated how the defendant should have done so, for example was it by instruction, the provision of training or by supervision. I accept that it is possible to plead that it was a reasonable step to ensure that the workers were using a fall arrest system on the roof. In my view the pleading falls short of the Kirk requirements.
Paragraph 14(b) of the Summons alleges a failure to advise the workers not to commence the work until the safety measures identified in the job safety analysis were put in place. In my view, the failure by the defendant to so advise the workers is capable of being a reasonable step in the system adopted by him to ensure compliance by HPS. I would interpret this particular as requiring the defendant to verbally advise the workers. If some other meaning is intended by the prosecutor the particular should be amended to reflect that.
Paragraph 14(c) and (d) of the Summons alleges that the defendant should have developed and implemented a Safe Work Method Statement and provided the workers with it before allowing them to work on the roof. These particulars fail squarely within the system to be implemented by the defendant to ensure compliance by the PCBU and are therefore not objectionable.
Paragraph 14(e) of the Summons alleges that the workers should have been instructed as to the presence of non-weight bearing materials and the requirement to wear a safety harness attached to an anchor point on the roof. In my view, the failure by the defendant to so instruct the workers is capable of being a reasonable step in the system adopted by him to ensure compliance by HPS. I would interpret this particular as requiring the defendant to verbally instruct the workers. If some other meaning is intended by the prosecutor the particular should be amended to reflect that.
Paragraph 14(f) of the Summons alleges a failure to ensure that Mr Wilkinson was appropriately trained in working at heights before being allowed to work on the roof. The particular does not state how this was to be done. It implies that the defendant was required to make the enquiry himself, but it does not say that. I accept that it is open to plead that it was a reasonable step to ensure that the workers were appropriately trained in working at height. In my view the pleading falls short of the Kirk requirements.
Paragraph 14(g) of the Summons alleges that the defendant should have provided adequate supervision on the roof. In my view, the failure by the defendant to supervise the workers is capable of being a reasonable step in the system adopted by him to ensure compliance by HPS.
In my view, the defects in the Summons can, having regard to the merits of the case, be amended without injustice. The defendant has not yet entered a plea to the charge. For the reasons given, some of the particulars in [14] of the Summons can be brought within an allegation of system that the defendant should have implemented to ensure compliance with the Act by HPS.
The failures of the pleading do not amount to a sufficiently serious case to quash the indictment or to grant a stay of the proceedings.
The orders I make are as follows:
1. Paragraphs 14(a) and 14(f) of the Summons are struck out.
2. I grant leave to the prosecutor to re-plead the allegations set out in those sub-paragraphs.
3. I grant leave to the prosecutor to re-plead the allegations in [14(b)] and [14(c)] of the Summons, if so advised.
4. In each sub-paragraph of [14] of the Summons the words in italics in [53] of this Judgment are struck out.
5. I direct that the prosecutor file and serve an Amended Summons on or before 5pm on 23 February 2019.
6. I will hear the parties on costs.
[11]
Endnotes
Prior to its amendment on 7 June 2011 to replicate the form of section 27 of the Act.
[8.29]-[8.31].
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Decision last updated: 13 February 2019