Court of Appeal (WA)|2003-07-30|Before: Anderson J, Heenan J

Tenix Defence Pty Ltd v Maccarron [2003] WASCA 165 (30 July 2003)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : TENIX DEFENCE PTY LTD -v- MACCARRON [2003] WASCA 165

BETWEEN : TENIX DEFENCE PTY LTD (ACN 006 879 846)

Occupational health and safety - Occupational Safety and Health Act 1984 (WA) s 19 - Duty to provide safe working environment

Death of employee by electrocution while welding in a confined space on board a ship under repair - Whether "reasonably practicable" for appellant to have avoided or reduced risk or hazard

Campbell v The Queen [1981] WAR 286

Carrier Airconditioning Pty Ltd v Duzevich [2001] WASCA 243

Devries v Australian National Railways Commission (1993) 177 CLR 472

Go-Crete Pty Ltd & Anor v Innes [2002] WASCA 240

MacCarron v Coles Supermarkets Australia Pty Ltd [2001] WASCA 61; (2001) 23 WAR 355

MacCarron v Future Engineering and Communication Pty Ltd (1998) 81 IR 241

State Rail Authority (NSW) v Dawson [1990] 37 IR 110

1 EM HEENAN J: At about 4pm on Saturday 3 March 2001, Franjo Banisevic, a 48 year old boilermaker/C9L3 welder then in the employ of Tenix Defence Pty Ltd, suffered a fatal electric shock in the course of his employment while engaged on welding duties inside the hull of the Fishing Vessel, FV "Southern Champion" then in dry dock at Tenix Shipbuilding, 775 Cockburn Road, Henderson. Following that incident the respondent, an officer of Worksafe Western Australia, charged the respondent employer on complaint with the following offence:

"That on the 3rd day of March 2001 at Henderson, Tenix Defence Pty Ltd t/as Tenix Shipbuilding WA, being an employer, failed to provide and maintain, so far as was practicable, a working environment in which its employees were not exposed to hazards and by that contravention caused the death of an employee; contrary to sections 19(1) and 19(7) of the Occupational Safety and Health Act 1984."

Particulars of the charge were provided and these will be described later.

2 The trial of the respondent took place before his Worship Mr T J McIntyre SM in the Court of Petty Sessions at Perth on 10 and 11 December 2002. After reserving his decision at the end of the trial, the learned Magistrate gave detailed reasons on 12 December 2002 for his decision to convict the respondent of that charge.

3 By leave, granted by Anderson J on 19 February 2003, the appellant now appeals against that conviction pursuant to s 199 of the Justices Act 1902. Before outlining the grounds of appeal and further grounds raised by the respondent in a notice of contention which has been filed, it is necessary to describe in more detail the circumstances which led to the death of the deceased.

4 At the trial the evidence for the complainant (respondent) consisted of a series of agreed facts and the testimony of nine witnesses, together with various reports and other exhibits. Following the rejection of a no case submission made on behalf of the appellant, one witness gave evidence for the appellant.

5 The agreed facts were as follows. That the appellant was at the material time a registered company trading as Tenix Shipbuilding WA. It employed Mr Franjo Banisevic, the deceased, who on 4 March 2001 was carrying out work which involved cutting penetrations and welding houses for transducer cables, on the forward lower cofferdam of the vessel called the "Southern Champion". On that day a confined space permit No 5994 had been issued in respect of the proposed work which was scheduled to take place between 0630 and 1700 hours. Before this permit was issued, tests were conducted to ensure that the place where the work was to be done was free from gasses. Also on that day a hot work certificate No 4041 had been issued in respect of the proposed work. The deceased was carrying out the welding components of the work that day. The appellant was the owner of the welder and associated equipment which was being used by the deceased at the time of the accident. The appellant also supplied the personal protective equipment, including welding helmet and gloves used by the deceased that day.

6 The report of the Chief Electrical Inspector, Electrical Inspection Branch of the Office of Energy, Mr Michael Bunko, became Exhibit "G" at the trial. There was no controversy about the basic findings which Mr Bunko reported. These were that at approximately 4 o'clock, Franjo Banisevic, was installing/welding steel pipes in a confined space of the starboard forward cofferdam on board the FV "Southern Champion" then in dry dock at the appellant's Henderson yard. The "Southern Champion" was a fishing and processing vessel of large capacity that had been dry docked to undergo general maintenance, upgrades to existing infrastructure and hull resurfacing. On that day, from approximately 0630 hours until lunchtime the deceased, with two mechanical fitters had been carrying out the installation and welding of steel pipes which were to be utilised as conduits for transducer wiring. These pipes, approximately 60mm in diameter, penetrated and passed through the fuel tank to the hull bottom and required welding to be carried out in several places. One place of installation for the pipes was the starboard forward cofferdam of the ship. This required the deceased to stand in the fuel tank. A diagram showing the location of the cofferdam and the narrow confines where the welding occurred forms part of Mr Bunko's report at AB 477.

7 After lunch, at approximately 1300 hours, the deceased and his apprentice, Mr Anthony Babic, who was the appointed spotter, entered the cofferdam and continued welding until the time of the accident at approximately 1600 hours on a very hot day. The maximum/minimum temperature readings for the day were 36.2deg.C and 24.1deg.C respectively. The nearest weather station at Kwinana BP Refinery recorded the temperature at 1500 hours as being 33.5deg.. The temperature inside the vessel's hull was not recorded, however, it was estimated as being approximately 15deg. to 20deg. hotter than the outside ambient temperature. The deceased was wearing heavy duty overalls; T-shirt; welding balaclava; heavy duty welding gloves; welding helmet with attached leather bib; and work boots with synthetic rubber soles. Examination of his clothing soon after the accident revealed it to be saturated with perspiration.

8 To weld the pipes, which passed through the floor of the cofferdam on both sides of the steel floor plate, the deceased was obliged to stand up to his mid to upper thighs, in an oval shaped (400mm x 500mm) steel inspection hatchway in the floor of the cofferdam into the fuel tank. The deceased and Babic were in the cofferdam from between 1300 and 1600 hours without having any liquid intake. At approximately 1600 hours Babic heard Banisevic groan and saw him slump forward. He yelled at the deceased to find out if he was all right and when he received no response he removed the deceased's helmet and knocked him on the shoulder or head with the helmet. When Banisevic did not respond it was obvious that something was seriously wrong and the alarm was raised. A post mortem examination revealed injuries to the top of the right side of the deceased's chest, face and neck, described by a pathologist as being consistent with electro-thermal injuries.

9 In the electric arc welding process which was being employed on this occasion, the electrode in the handpiece held by the welder is electrically charged and the point on the surface being welded carries the opposing charge so that current flows from electrode to welded surface, heating the welding point, in the process creating a flux and melting the metal, to form the weld. This is achieved by conveying electrical current from the welding machine, via insulated cables to the electrode in the handpiece held by the welder and, simultaneously, charging the surface being welded by connecting the second cable from the welding machine to a metal structure at or near the surface being welded to create a circuit once contact is made with the point to be welded by the hand held electrode. This is graphically illustrated in the diagrams at AB 485 - 486; 515, 535 - 539, the latter of which are extracted from an appendix to the Australian Standards Association Guidelines dealing with examples of fatal electrical accidents. Well-known hazards associated with this process are that large areas of the metal surface being welded and its surrounds can also become electrically charged so that if the welder inadvertently touches or makes contact with surrounding surfaces with any part of his body or clothing a short circuit can occur and electrical current can flow through the welder's body. This risk is much increased if the welding operation takes place in wet or damp surroundings, or if rain should fall on the operation and, significantly, if moisture builds up on the welder's body and clothing from perspiration caused by working in a hot environment.

10 Examples of accidents occurring due to factors of this kind are depicted in the diagrams already mentioned.

11 The details of the welding machine and equipment used and the welding process employed are as follows:

• Primary input 415 volt AC, 39 Amperes with condensers or 47 Amperes without

• Output current: 240 Amperes at 100 per cent Duty Cycle 115 degrees Temperature Rise

• Maximum short circuit input current: 100 Amperes with power factor collection 112 Amperes without power factor correction.

The welding machine used by the deceased was located in a three-sided, roofed enclosure next to the ship and was supplied/connected to a 415 volt AC electricity supply.

12 The welding process for electric arc welding requires a closed circuit, with minimum impedance between the electrode lead (incorporating the electrode holder/handpiece and electrode) and the work lead (commonly referred to as the "earth" that is clamped or temporarily attached to the metal component to be welded). Once this closed circuit is achieved a flow of electricity, incorporating a voltage of approximately 72 volts AC coupled with the desired amperage setting, that is 128 amperes, will occur. The electrode (steel rod) will fuse with the metal, aided by the flux coating, and the weld is achieved.

13 According to the report of Inspector Bunko and his oral evidence, the relevant Australian Standard 1674.2-1990 "Safety in Welding and Allied Processes" sets out the requirements for the prevention of electric shock and the minimising of certain associated hazards in arc welding and allied processes. That standard describes the practices and safeguards which should be adopted by welders and the connections for alternating and direct current power sources, together with the requirement for any ancillary equipment. It includes specific recommendations which, in the opinion of Inspector Bunko, should have been implemented whilst welding in a confined space, namely:

• an assistant who has been trained in resuscitation techniques should be appointed and shall keep the welder under constant observation

• suitable means should be provided, adjacent to the work, to enable the assistant to cut off the current supply quickly in case of necessity

(i) until the welder is in position and is ready to start work;

(ii) while electrodes are being changed; and

(iii) when, for any reason, the welder or assistant is required to leave the job.

14 It was the case for the respondent that some additional form of protective device should have been employed during this welding operation in order to prevent a potentially lethal short circuit occurring or, to interrupt the power supply virtually instantaneously should this occur. Such precautions could be achieved by installing an isolation unit, or a voltage reduction device (VRD), or an inline isolation switch.

15 A VRD can be utilised to limit the open circuit voltage available from the welding machine when the welder is not welding. Basically, a VRD is placed in series with the welding leads and senses the resistance/impedance of the welding circuit. If the value is less than the resistance/impedance required for normal operation the VRD will allow full open circuit voltage enabling an arc to be struck. If the resistance/impedance is too high, such as in the resistance of a human body, then the VRD will only allow an extra low open circuit voltage, therefore reducing the severity of a potential electric shock. While a VRD offers a higher level of safety, the devices are not suitable in all applications.

16 An isolation unit is connected in series with the positive welding lead and has an auxiliary power supply which operates in conjunction with a micro switch (mounted on the electrode holder) and upon release of the micro switch, de-activates a contactor inside the isolation unit and opens the secondary welding supply. In theory, it operates on the same principle as a dead man's hand device, utilised in some railway engines, so that if a switch on the welding handpiece is not depressed, as it will be during actual welding, no voltage will be supplied to the electrode. This affords protection on occasions when the welder may be changing electrodes or is manoeuvring in the work space at a time when an arc is not struck or an established welding circuit is operating.

17 An in-line isolation switch is a switch installed in series in the leads from the welding machine to the handpiece at a convenient location close to the observer or other nearby workmen which can be quickly actuated to break the circuit whenever that necessity may arise.

18 In the present case, the return or earth electrode from the welding machine was connected to some point on the base of the metal hull of the vessel in which the deceased was working while, as already mentioned, the positive lead from the welding machine led directly to the electrode in the welding handpiece. The use of "positive" and "negative" to describe the leads is, of course, inappropriate in a case like this where the power supply was alternating current, but, nevertheless, that is the convenient convention utilised to describe these connections in the trade. This meant that not only the metal pipes which were being welded by the deceased in the cofferdam were charged and formed part of the electric arc weld circuit on this occasion, but so were all the metal plates of the walls of the cavity in which the deceased was operating. Hence, contact by the deceased with any part of the surrounding metal surfaces in an uninsulated fashion could create a potentially lethal short circuit. The build up of perspiration, already described, would substantially diminish and defeat the protection which some of the insulated clothing might otherwise confer.

19 The evidence of Inspector Bunko (AB 90/98), of Professor I D Henderson and from the photographs in Exhibit "G" at AB 473, was that the electrode found in the handpiece of the deceased immediately after his death was new and unstruck. This can only mean that the deceased was not engaged in actual welding at the time he suffered his fatal shock and had just completed the task of fitting a new electrode to his handpiece before attempting to resume the welding operation. This is of significance in regard to the utility of the various protective devices which might have been installed because there had been evidence which showed that, in their absence, there was a significantly increased risk of electrocution when electrodes were being changed or when the welding arc was not established.

20 The respondent supplied the following additional particulars of the charge, namely:

"Employee - Franjo Banisevic

Hazard - risk of death or injury from electrocution whilst using welding equipment

Practicable measures - it was practicable for the defendant to have provided:

(a) a voltage reduction device; or

(b) an isolation unit

Death - the defendant's failure as alleged caused the death of Franjo Banisevic."

21 The relevant provisions of the Occupational Safety and Health Act 1984 relied on by the respondent are as follows:

(1) An employer shall, so far as is practicable, provide and maintain a working environment in which his employees are not exposed to hazards and in particular, but without limiting the generality of the forgoing, an employer shall -

(a) provide and maintain workplaces, plant, and systems of work such that, so far as is practicable, his employees are not exposed to hazards;

(b) provide such information, instruction, and training to, and supervision of, his employees as is necessary to enable them to perform their work in such a manner that they are not exposed to hazards;

(c) consult and co-operate with safety and health representatives, if any, and other employees at his work place, regarding occupational safety and health of the work place;

(d) where it is not practicable to avoid the presence of hazards of the work place, provide his employees with, or otherwise provide for his employees to have, such adequate personal protective clothing and equipment as is practicable to protect them against those hazards, without any cost to the employees; and

(e) make arrangements for ensuring, so far as is practicable, that:

(i) the use, cleaning, maintenance, transportation and disposal of plant; and

(ii) the use, handling, processing, storage, transportation and disposal of substances,

at the work place is carried out in a manner such that his employees are not exposed to hazards.

(2) In determining the training required to be provided in accordance with subsection (1)(b) regard shall be had to the functions performed by employees and the capacities in which they are employed.

(6) An employer who contravenes subsection (1) commits an offence and is liable to a fine of $100,000.

(7) An employer who contravenes subsection (1) and by that contravention causes the death of, or serious harm to, an employee commits an offence and is liable to a fine of $200,000.

(9) An employer charged with an offence in subsection (7) may, instead of being convicted of that offence, be convicted of an offence against subsection (6)."

It follows from subs 19(6), (7) and (9) that a contravention by an employer of the obligations imposed by subs 19(1) involves the commission of an offence but that if the contravention causes the death or serious harm to an employee, the employer commits a more serious offence against subs 19(7) and is liable to a higher penalty. In the present case the respondent alleged that the appellant's contravention of subs 19(1) had caused the death of Mr Franjo Banisevic and, accordingly, the more serious offence under subs 19(7) had been committed. To prove the commission of that more serious offence it was necessary for the respondent to prove, in addition to the elements of an offence against s 19(1), that such contravention had caused the death of the deceased. If that causation could not be proved to the requisite degree, but a breach of subs 19(1) was nevertheless established, then the appellant could be convicted of an offence prescribed by subs 19(6). In the present case the appellant was convicted as charged, that is of an offence against subs 19(7), meaning that the learned Magistrate was satisfied that it had been proved by the respondent that the breach of subs 19(1) did cause the death of Mr Banisevic. As this is a prosecution for an offence, proof of the element of causation and all other elements of the offence alleged, must be proved beyond reasonable doubt.

22 It is apparent that subs 19(1) of the Act refers particularly to "hazard", "risk" and "practicable". These terms are defined by s 3 of the Act to mean, unless the contrary intention appears:

" 'Hazard', in relation to a person means anything that may result in -

(a) injury to the person; or

(b) harm to the health of the person;

and

'risk', in relation to any injury or harm, means the probability of that injury or harm occurring;

'practicable' means reasonably practicable having regard, where the context permits, to:

(a) the severity of any potential injury or harm to health that may be involved, and the degree of risk of it occurring;

(b) the state of knowledge about -

(i) the injury or harm to health referred to in paragraph (a);

(ii) the risk of that injury or harm to health occurring; and

(iii) the means of removing or mitigating the risk or mitigating the potential injury or harm to health; and

(c) the availability, suitability and the cost of the means referred to in paragraph (b)(iii)."

As will be seen, the appellant lays special emphasis upon these definitions in its submissions in support of the appeal.

23 It should also be noted that by subs 3(3) it is provided as follows:

"3(3) For the purposes of sections 19(7), 20(5), 21(3), 22(5), 23(5) and 23A(3) a contravention causes serious harm to a person if it causes any bodily injury to the person, or causes the person to have a disease, of such a nature as to -

(a) endanger, or be likely to endanger, the person's life; or

(b) result, or be likely to result, in permanent injury or harm to the person's health."

24 At the trial the appellant maintained that it had provided and maintained a work place, plant and systems of work such that, so far as was practicable, its employees were not exposed to hazards. It submitted that the incidence of injury or death from electrocution in the arc welding trade was very small (on this appeal it was argued that it was negligible) and that this employer had never experienced such an accident before. On this basis it submitted that by engaging a fully qualified and experienced welder, such as the deceased, providing him with the necessary protective clothing and using established functional welding equipment, it had done all that was practicable to provide and maintain a workplace, plant and system of work such that the deceased was not exposed to hazards.

25 It followed from these submissions that the appellant accepted that with arc welding of this kind there is, to some degree, a risk of death or serious injury involved, but this is a small and irreducible risk which could not be reduced or avoided by any practicable means. In particular, the appellant submitted that, on all the evidence at the trial, it could not be found that the use of any of the three types of safety devices proposed, namely, voltage reduction devices; isolation units or an in-line isolation switch was practicable in the circumstances or would have prevented or reduced the risk of injury or death to the deceased. This particular submission also involved the proposition that the failure to use any of those three types of safety devices, could not be held to have caused the death of the deceased.

26 The learned Magistrate decided that the legal principles relating to the offence alleged were correctly set out in the decision of the Appeal Division of the Supreme Court of Victoria in R v Australian Char Pty Ltd [1999] 3 VR 834 and his Worship accepted and applied the explanation of the elements of such an offence contained in that decision.

27 At the trial the appellant raised the defence of accident under s 23 of the Criminal Code. It argued that the electrocution and death of Mr Banisevic was accidental because the evidence disclosed that it may have been caused by him succumbing to the effect of heat stress and dehydration causing him to faint and fall against an electrically charged metal surface. Having regard to the onus of proof and the standard of proof, this meant that the charge against the appellant should have been dismissed unless the prosecution was able to prove, beyond reasonable doubt, that the electrocution was not accidental within the meaning of s 23 of the Code.

28 The case for accident went this way. The appellant pointed out that welding in confined spaces, particularly in hot weather, for any length of time caused an employee to become dehydrated through heavy perspiration and that to counter this effect a system of work was established by which the welder would have "rehydration breaks" every 40 minutes or so. During such a break the welder would stop work, leave the confined and heated work site, and refresh himself by drinking water which was available for this purpose. Such breaks might take 10 or 15 minutes every 40 to 60 minutes and so would prevent the risk of the welder becoming dehydrated and prevent or reduce the accumulation of moisture in the protective clothing due to perspiration. The known effects of progressive dehydration for a worker include deterioration in judgment, loss of dexterity, deterioration in concentration and a proneness to loss of consciousness by fainting.

29 The evidence in the case showed that, after resuming welding work on the "Southern Champion" after lunch at 1300 hours on 3 March 2001, the deceased and his spotter, Mr Babic, worked without a break for rehydration or any other reason until the fatal event at about 1600 hours. It has already been noted that the clothing of the deceased was found to be drenched with perspiration after the incident. The appellant raised the prospect that, by working in those conditions for three hours or so without a break, it is probable that the deceased was subject to heat stress and fatigue and either made some error of judgment, due to the effect of the heat stress, or fainted, so suffering the fatal electric shock. On this issue there was also evidence suggesting that the deceased, Babic and other workmen were under pressure to finish the work on the vessel quickly so as to allow it to return to service the following Monday and that this urgency to complete the job was the reason why the deceased worked for as long as he did without a break.

30 It was also submitted for the appellant that the processes which had been followed earlier on 3 March 2001, leading to the grant of a permit for the welding operation to be undertaken on the vessel, including as this did an inspection of the work site by another senior employee of the appellant, and the provision of a certificate to carry out hot work, together with the presence of the apprentice spotter, Mr Babic, to keep the welder under constant surveillance, meant that the safety of the work site had been properly evaluated before the work had commenced and that all practicable precautions had been taken to avoid exposure to hazards. All these issues were addressed by the learned Magistrate in his decision.

31 The learned Magistrate, in his reasons for decision, after quoting from a passage drawn from the judgment of Harper J in Holmes v R E Spence & Co Pty Ltd (1992) 5 VIR 119 at 123 - 124, which was specifically approved by the Court of Appeal in Australian Char (supra) at 845 and 846, went on to say:

"Obviously then, employers are not required to anticipate every possible combination of circumstances no matter how freakish or unexpected which might expose an employee to risk. The obligations expressed in my own terms are to guard against the risk of objective foreseeable harm balancing that risk and the likelihood of its eventuality against the cost and practicability of the utilisation of protective devices whatever they might be.

The balancing act to which I referred earlier requires me to take into account that this legislation applies to work places not academic laboratories, and I am mindful of the fact that over time what was once a cutting edge research often becomes the mundane norm, and in many cases that transition occurs quite rapidly.

In my view, the evidence establishes beyond reasonable doubt that the environment in which Mr [Banisevic] was working on this day was clearly a confined space involving high temperatures and therefore an increase in the risk of exposure to hazards of the kind contemplated in Australian Standard 1674.2, and I quote from that standard. Clause 3.2 deals with working in confined spaces and [I] decide from that what appears to be the most relevant aspect. It there provides:

'Where the welder is required to work in a confined space such as a boiler drum, a tank or similar location, the following conditions should apply.

There should be an adequate supply of fresh air, an assistant who has been trained in resuscitation techniques should be appointed and should keep the welder under constant observation, and suitable means should be provided adjacent to the work to enable the assistant to cut off the current supply quickly in case of necessity.' "

His Worship then quoted more extensively from the Australian Standards, and rejected the prosecution case that a voltage reduction device should have been installed in the welding circuit due, it seems, to some doubts which had emerged in the evidence about their efficacy in such situations at that date. After reviewing the evidence in more detail, the learned Magistrate then said:

"Mr [Banisevic] was at the relevant time wearing all appropriate protective clothing, that is, welding helmet, balaclava, overalls, welding gloves and work boots. Mr [Babic] was acting as sentry and was in close proximity to Mr [Banisevic] when he sustained the electric shock which directly caused his death. Mr [Banisevic] was at the time standing in the aperture giving access to the lower void within his waist at about floor or deck level and though an arc was not then established, Mr [Banisevic] was engaged in the process of welding. The prosecution is unable to show precisely how the fatal shock was sustained.

Against the backdrop of those broad parameters and in the presence of a known hazard, the prosecution say the defendant should have had available for the safety of its employee an in-line isolation switch allowing Mr [Babic] to manually isolate the welding handpiece at the first sign of anything untoward happening.

They maintain such a device is a means by which the defendant could have met all the obligations imposed by the Act in that it is practicable and it reduces the risk associated with the hazard as those terms are defined in the Act.

I think it fair to say in a way which is not critical that the prosecution really do see it in those simplistic terms; a device was available, it should have been there, it wasn't there and therefore in all the circumstances there's been a proven failure.

The defendant suggests to the contrary and puts forward two principal responses which in my view, as I have already expressed, should be confined to the issue of an isolation switch.

The first issue raised by the defendant is accident. Section 23 of the Criminal Code clearly applies, and if there is credible evidence raising this issue, as I've earlier said the prosecution must negate it beyond reasonable doubt, an accident is something which is not intended, not foreseen nor likely to be foreseen by a reasonable person.

In my view, for the defendant to suggest that the risk of death by electrocution in the context of the welding environment existing in this case was not foreseeable, is totally untenable. However, it is suggested that the particular circumstances unique to Mr [Banisevic] placed this case in a category of its own."

His Worship then set out and examined the evidence relating to the postulated effects of heat strain and dehydration and continued:

"The defendant suggests that the risk of heat strain is something which was clearly addressed in its policy of permitting breaks for rehydration and there is therefore no reason for it to contemplate and therefore guard against the [improbable] convergence of factors leading to Mr Banisevic's death, more so when the prosecution cannot establish the precise circumstances of his death.

I accept that this argument has about it an air of superficial appeal but I do not accept its application to this particular case, and I say so for the following reasons."

Then follows an examination of the evidence relating to the postulated effects of heat stress which his Worship rejected in the light of the evidence of the eyewitness Babic who had seen the deceased upright immediately before the incident and then heard him groan - observations incompatible with a postulated loss of consciousness. His Worship continued:

"I find there is no credible evidence upon which the heat strain defence can be mounted, and in case any one may think I've reversed the onus of proof, the prosecution have negated it.

Electrocution by inadvertent contact with any live component of the welding process is clearly foreseeable and in my view whether or not that contact is induced by the effects of heat strain, slipping or falling, or some other means is essentially immaterial because in my view the defendant's fundamental obligation as imposed by s 19 is to guard against the well known and well documented risk of the consequences of contact not its cause.

By way of final comment I also believe that the defendant's reliance on the heat strain defence is further undermined by the clearly established demands imposed on Mr [Banisevic] and other workers by the time constraints associated with this particular job. I have heard clear reference to the fact that the vessel was being prepared so that painting could be done on the Sunday. The vessel was due to go back into the water on the Monday. I heard reference to Mr [Banisevic] complaining about the fact that the fitters were not quick enough, and so on.

Those factors should clearly have alerted the defendant to the likelihood if not the certainty of the risk that Mr [Banisevic] would forego his rehydration breaks, as it seems he did, therefore increasing the risk of heat strain and other consequences associated with the existing working environment.

Common sense and experience in my view permit me to assert that even in the absence of anything other than the most basic training, anyone in a work place where electricity is used would appreciate that the first step in an emergency is to isolate the electricity supply.

In failing to provide an isolation switch available for utilisation by Mr [Babic], I believe the defendant has failed in its statutory duty and I find this charge proven beyond reasonable doubt. Thank you."

32 The appellant relies on five distinct grounds of appeal each of which are amplified by detailed references to the findings and the evidence. It is, nevertheless, desirable that I should set these out in full, as follows:

A. The Learned Magistrate erred in fact and law in failing to apply the correct test to determine whether the Applicant breached s 19(1) of the Occupational Safety and Health Act 1984 (WA) ('Act') thereby causing the fatality in that His Worship variously held that:

(a) the Appellant's obligations were to guard against the risk of objectively foreseeable harm balancing that risk and the likelihood of its eventuality against the cost and practicability of the utilisation of protective devices whatever they might be;

(b) the fundamental obligation is to guard against the well known and well documented risk of the consequences of contact not its cause;

(c) the first step in an emergency is to isolate the electricity supply;

(d) the Act only provides that the obligation on the Applicant was to do everything practicable to avoid exposing the deceased to a hazard, namely, that of an electric shock that could cause death when welding in the circumstances in question;

(e) the Act defines practicable to mean reasonably practicable having regard to various things;

(f) the learned Magistrate failed to make any, or any proper, findings concerning those things described in the definition of practicable;

(g) isolation of the electricity supply in an emergency is irrelevant to whether the Applicant breached its obligation not to expose the deceased to the hazard of an electric shock that could cause his death; and

(h) there was no, or no proper, basis upon which to find that the Applicant breached s 19(1) of the Act thereby causing the fatality.

B. Having found that the prosecution was unable to show precisely how the fatal shock was sustained, the Learned Magistrate erred in fact and in law in determining that it was beyond reasonable doubt that the Applicant breached s 19(1) of the Act thereby causing the fatality when:

(a) the Learned Magistrate failed to have regard, or proper regard, for the evidence that:

(i) an in-line isolation switch would normally only have been operative when a welder was changing electrodes;

(ii) the deceased changed a number of electrodes without incident prior to receiving the fatal electric shock;

(iii) the deceased was also frequently striking and then breaking the arc (during which time an in-line isolation switch would not have been expected to have been in operation) prior to receiving the fatal electric shock;

(iv) the deceased was performing welding both underneath and above a platform;

(v) the operation of an in-line isolation switch relied upon communication between a welder and his assistant;

(vi) the deceased had his back to his assistant when he received the fatal electric shock;

(vii) an electric shock of sufficient intensity could have killed the deceased in a matter of milliseconds;

(b) the Learned Magistrate failed to draw the only inference that could, and should, have been drawn on the evidence, namely, that it was not beyond doubt that an in-line isolation switch, even if one had been provided, would have prevented the electric shock that caused the fatality.

C. The Learned Magistrate erred in fact and law in dismissing the defence of accident available under s 23 of the Criminal Code (WA) in reliance upon his finding, in effect, that there was no credible evidence that heat strain contributed to the fatality because the Bates' Report (Exhibit B) was incorrect when:

(a) the Bates' Report was evidence (introduced by the prosecution) of the fact that the deceased was suffering from heat stress at the time he received the fatal electric shock, regardless of when or how he received it;

(b) the Learned Magistrate misinterpreted the Bates' Report thereby failing to appreciate this fact and, therefore, failed to take into account a relevant factor namely, that the deceased was suffering from heat stress at the time he suffered the fatal electric shock, regardless of precisely how the shock was sustained;

(c) if taken into account, the factor referred to in (b) above would have been evidence of accident that could not have been negated by the prosecution beyond reasonable doubt.

D. The Learned Magistrate erred in fact in taking into account, in determining that the Applicant breached s 19(1) of the Act, thereby causing the fatality, the finding that the Applicant should have been alerted to the likelihood, if not the certainty, of the deceased forgoing rehydration breaks when:

(a) such finding was inconsistent with the finding referred to in ground C above that, in effect, there was no credible evidence that heat strain contributed to the fatality;

(b) the Learned Magistrate failed to take into account, or proper account, the evidence that:

(i) hot and confined conditions, such as the ones in question, were not uncommon in the Applicant's industry;

(ii) employees of the Applicant, including the deceased, regularly took breaks as necessary for rehydration as a matter of practice and were not discouraged by the Applicant from doing so;

(iii) the deceased was an experienced welder and an employee of long standing with the Applicant;

(iv) an assessment on behalf of the Applicant of the confined space in question was first made, in accordance with the Applicant's procedures, before the shift commenced at about 6.30am;

(v) it could, and should, have been inferred that such assessment took into account the matters referred to in paragraphs (i)-(iv) above;

(vi) even though the deceased had complained at lunchtime to his supervisor, one Pedri, about the time the fitters were taking to do the job, Pedri twice checked on the deceased during the course of his work after lunchtime, and reminded him of the need to take breaks for rehydration;

(vii) the deceased did not do or say anything on such occasions to alert to Pedri the possibility that he would not take rehydration breaks as necessary but, to the contrary, stated to Pedri on the second occasion that he was fine;

(viii) Pedri had supervised the deceased's work for about 7 years prior to the fatality, without any cause for complaint about his work, or attitude to safety, and so had no other basis upon which to apprehend that the deceased might not take rehydration breaks;

(ix) fluids were readily available close to the deceased's work station;

(c) there was no evidence that the deceased was put under pressure by any person acting on behalf of the Applicant to complete the job quickly, or knew that the job was scheduled for completion that day.

E. The Learned Magistrate erred in fact and in law in dismissing the defence of accident available under s 23 of the Criminal Code (WA) without first determining whether the Applicant breached s 19(1) of the Act thereby causing the fatality as:

(a) even if the Applicant could have been held to have breached s 19(1) of the Act (which is denied), for the reasons expressed in ground B above, there was no evidence, or proper evidence, to support a finding that such breach caused the fatality;

(b) by first dismissing the defence of accident (incorrectly) on the basis referred to in ground C above, the Learned Magistrate failed to appreciate this and, accordingly, misled himself."

The respondent has also filed a notice of contention that the decision of the learned Magistrate to convict the appellant should be affirmed on all the evidence, including the evidence of the availability of voltage reduction devices. The notice of contention provides as follows:

"Notice of Contention

[The decision] should be affirmed on the ground that, given the whole of the evidence before the learned Magistrate and, in particular, the uncontested evidence:

(a) about the risk of electric shock and electrocution from the use of welding equipment;

(b) about the degree of risk of electric shock when welding in a confined space in high temperatures;

(c) about how voltage reduction devices operate to reduce the level of open circuit voltage of welding equipment to a safe level prior to an arc being struck;

(d) that voltage reduction devices were available in March 2001;

(e) that the Defendant had purchased 11 voltage reduction devices for use in South Australia in 2000;

(f) that when the electrode holder was retrieved from the cofferdam of the ship an electrode that had never been struck was in the holder;

(g) that an isolation switch should be used when welding in confined spaces;

(h) that an isolation switch should be activated when welding electrodes are changed and at other times when welding is not taking place;

the Appellant (Defendant) should be convicted of contravening s 19(1) and (7) of the Occupational Safety and Health Act 1984, as alleged."

33 In the course of submissions counsel for the respondent also argued that, if for any reason, the appellant demonstrated that it should not have been convicted of an offence under s 19(7) of the Act, involving the causation of the death of the deceased, it should nevertheless be convicted of a breach of s 19(1) under s 19(6) of the Act and, to any extent necessary, the notice of contention should be regarded as amended to include that contingency. Leave was granted for the respondent to advance that additional contention.

34 The principal issues, therefore, as raised by the notice of appeal and the notice of contention and as argued at the hearing can therefore be summarised as being:

1. The learned Magistrate at trial applied an incorrect test for determining what was "practicable" in the circumstances for the employer to provide and maintain in the working environment to avoid exposure of hazards to employees.

2. The learned Magistrate erred in concluding that the failure to provide an in-line isolation switch caused the death of the deceased.

3. The learned Magistrate erred in rejecting the defence of accident and in holding that this had been negated by the respondent when there was evidence which suggested that heat stress and dehydration of the deceased caused or contributed to the electrocution.

4. The learned Magistrate erred in finding that the appellant should have been alerted to the prospect of the deceased foregoing rehydration breaks when the system of work provided reasonable opportunities for the deceased to take such breaks.

5. The learned Magistrate erred in fact and in law in rejecting the defence of accident for the further reason that even if there had otherwise been a breach of s 19(1) by the employer, the death of the deceased was an accidental consequence of that breach and was not, therefore, caused by it.

6. That the learned Magistrate erred in rejecting the prosecution's submission that voltage reduction devices should have been installed.

7. That the evidence revealed that the fatal shock was suffered when the deceased was not actually welding, but soon after he had fitted a fresh electrode to the welding handpiece so that an isolation switch, if installed, would have been effective in preventing a short circuit at a time when electric welding was not taking place.

35 To a significant extent these grounds, in particular grounds 2 to 7 as I have summarised them, require for their evaluation an examination of the evidence and the findings about how the fatal shock was suffered by the deceased. This is because that will determine the extent to which any of the preventive measures suggested by the prosecution or accepted by the learned Magistrate at trial would have been effective in preventing the death of the deceased or, failing that, would have been a practicable procedure for the reduction of the hazard of electrocution.

36 While it is true to say that the exact circumstances of how the deceased suffered the fatal electric shock were not established there was nevertheless, evidence which was accepted by the learned Magistrate, which narrowed the possibilities very considerably and, in my opinion with respect, sufficiently to allow a number of important conclusions to be drawn.

37 First, and contrary to the opinion which was put forward by Inspector Bunko as no more than an hypothesis about the potential effects of heat stress as a contributing cause to the electrocution, there was the evidence of the apprentice spotter Babic that he had kept the deceased in view most of the time when he was welding and that he could also tell whether or not welding was actually taking place because of the light and smoke which came from the arc. There had been occasions when the welding ceased temporarily and Babic saw the deceased change electrodes. At some point after 4 o'clock, and at a time when welding was not actually taking place, Babic heard Banisevic groan and he looked down the aperture to the work space and saw Banisevic standing upright, observed his shoulders to stiffen and noticed that his visor was flicked up. Babic tried to attract the attention of Banisevic by striking his helmet a few times and then removed his helmet and tapped him on the head with it but received no response. To this account must be added the evidence that the electrode later found in the handpiece of the welder was a new one which had not been struck.

38 The learned Magistrate accepted this evidence as showing that the deceased was upright and conscious at the time he suffered the electric shock and so rejected the hypothesis that he may have fainted because of heat stress and in doing so touched a charged metal surface. In my respectful opinion the learned Magistrate was fully entitled to take that view of the evidence and so to conclude that the deceased had not fainted due to heat stress. This does not necessarily mean, however, that the performance of his duties may not have been adversely affected by heat stress in that his judgment, dexterity and concentration may have been impaired to some degree. However this is only a possibility for nothing of that kind had occurred to Babic nor had Mr Banisevic, as an experienced welder who must have been well aware of the need for care and safety on his own behalf, thought it necessary to take a break from his activity.

39 In the light of this evidence I accept the submission of the respondent that the learned Magistrate should also have found that, immediately before the fatal shock, the deceased had temporarily stopped welding, had put up his visor and had replaced a spent electrode with a fresh electrode in the welding handpiece, and had not attempted to restrike the arc with the fresh electrode before the fatal shock. Had he done so his visor would have been down and the tip of the electrode would have shown the effects of the current produced by the attempt. That evidence shows that the deceased was engaged in replacing an electrode in his handpiece at a time when the current was still on and when there was a heightened risk of a short circuit occurring. As noted, there was also evidence that isolation switches or other control devices should be employed when welders are changing electrodes, and at other times when welding is not actually taking place, to prevent or diminish this heightened risk.

40 Clearly, had there been such an isolation switch or other device installed, and if it had been activated during the period when Banisevic was changing his electrodes and before he attempted to restrike the arc, this short circuit could not have occurred. The learned Magistrate concluded that an isolation switch should have been installed and activated and that if it had been this fatal shock would have been prevented. I agree, with respect, with that conclusion but I also consider that this conclusion should be upheld because of the factors raised by the notice of contention, namely, that the shock occurred during an interlude in the actual welding when the electricity supply to the handpiece could and should have been isolated.

41 One of the submissions for the appellant was that an in-line isolation switch, or other isolation switch, which relied upon manual operation by the apprentice spotter or some other assistant, in the case of emergency would have proved ineffective because a fatal shock could be delivered to the body of a welder in milliseconds, far too fast for its effects to have been avoided in the several seconds needed for an individual to operate an isolation switch. This argument may well have been effective to show that the installation of an in-line isolation switch in this particular welding circuit, would not have prevented the fatality if the deceased had suffered the shock at a time when the current was on because of welding then taking place. In that event, still assuming that an in-line isolation switch was a practicable and necessary precaution to reduce hazards in the working system, the most that could be established would be a breach of s 19(6), because the omission of the protective device could not be regarded as being a cause of this death if it could not have been employed fast enough to prevent the fatality. However, once it is apparent that the fatal shock occurred at a time when the electrode was being changed and before the arc was restruck, and at a time when an isolation switch, if installed, should have been operating, its use would have prevented this fatality. On the facts as found by the learned Magistrate and upon the other uncontroverted evidence about the activity of the deceased and the state of the electrode in the handpiece at the time the fatal shock was suffered, it is clear that an in-line isolation switch activated by the attendant, would have been effective.

42 In relation to the defence of accident under s 23 of the Code the appellant has submitted that the respondent did not negate, beyond reasonable doubt, the hypothesis that the death was due to the effects of heat stress on the deceased and, further, that even if there had been a breach of s 19(1) the consequence of that breach, namely the death of the deceased should be regarded as accidental in the sense that it was unforeseen an unforeseeable in a system of work which provided for regular rehydration breaks by the welder. Coupled with these submissions the appellant relied upon evidence that it had never experienced an electrocution or other incident such as this in the whole of its operations and that the incidence of electric shocks by arc welders nationally was extremely low.

43 The learned Magistrate correctly stated that the defence of accident under s 23 must be negated by the prosecution beyond reasonable doubt and that an accident is something which is not intended, not foreseen, nor is foreseeable by a reasonable person - Kaporonovski v R [1973] HCA 35; (1973) 133 CLR 209 and R v Van den Bemd (1994) 179 CLR 137. His Worship described the argument that the risk of death by electrocution in the context of the welding environment existing in this case was not foreseeable as being totally untenable. That is patently correct. Indeed, the very illustrations given in the Australian Standards relating to general precautions for safety in welding and allied processes, and particularly appendix B which describes situations where fatal accidents have occurred, demonstrate how similar this tragedy is to many situations in the past which have been recognised as creating these risks. To argue, as this appellant has done, that there was no basis upon which it could have foreseen such an accident is simply to demonstrate that the respondent was grossly, and alarmingly, unaware of the literature and learning on this subject of notorious danger.

44 When one speaks of foreseeability in this context, whether objective foreseeability of a reasonable employer placed in the circumstances of this appellant, or the subjective foreseeability of this particular appellant, it is not necessary to show that the precise sequence of events which led to the death was foreseen or foreseeable. This is not the test for foreseeability because it is sufficient in the circumstances to ask whether a consequence of the same general character as that which followed was reasonably foreseeable as one not unlikely to follow from the use of electric arc welding apparatus in a confined space and in hot working conditions - see Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112 at 120.

45 The learned Magistrate also concluded that, actuated by the pressures and urgency of the working situation to have the task completed, Banisevic decided to forego his rehydration breaks and keep working therefore increasing the risk of heat strain and other consequences associated with the existence of the working environment. This finding is by no means inconsistant with the conclusion that heat strain did not cause the deceased to faint and thus suffer his fatal shock. Rather, it is a finding that the pressures and urgency of the working schedule added another dimension of hazard, namely that the deceased would be tempted to decline his rehydration breaks out of a desire to complete the task, and that his reaction in this regard was a risk which could and should have been foreseen and prevented by the employer. There is nothing radical or erroneous in this conclusion, nor does the conduct of the deceased in any way break the chain of causation for his death beginning with the failure to install and operate an in-line isolation switch. In the provision of safeguards, the employer must allow for the fact that inattention or misjudgement are common features of everyday work and this is particularly so where the employee's job exposes him constantly to the risk of injury: Ferraloro v Preston Timber (1982) 56 ALJR 872 and McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306.

46 These conclusions dispose of grounds B, C, D and E of the appellant's grounds of appeal. They also deal with the notice of contention and, in that regard, uphold the grounds raised in the notice to support the decision of the learned Magistrate on the basis that an in-line isolation switch would have been effective in the situation where the deceased was changing the electrode in his handpiece and had just completed that task and had not recommenced welding when he suffered the fatal shock.

The employer's obligation, "so far as is practicable", to provide and maintain a working environment in which his employees are not exposed to hazards

47 The submission of the appellant was that the learned Magistrate had misdirected himself by applying the test of "practicability" adopted by the Court of Appeal in Victoria in R v Australian Char Pty Ltd (supra) when, so it was submitted there were material differences between s 21 of the Occupational Health and Safety Act 1985 of Victoria and s 19 of the Western Australian Act of 1984, bearing in mind the statutory definitions in the Western Australian legislation for the concepts of "risk", "hazard" and "practicable". While it is correct that the provisions of s 21 of the Occupational Health and Safety Act 1985 of Victoria are not identical with the provisions of s 19 of the corresponding Western Australian Act I am satisfied that, at least in relation to the circumstances of this case, the differences are not material and that the judgment of R v Australian Char Pty Ltd, to the extent that it was relied upon by the learned Magistrate, contains an accurate description of the principles which apply in the case of a complaint alleging an offence against s 19. There was reference, with evident approval, to the decision in Australian Char Pty Ltd (supra) by Steytler J in Hamersley Iron Pty Ltd v Robertson, unreported; SCt of WA; Library No 980573; 2 October 1998 at 15 - 17 and where his Honour reached similar conclusions about the meaning of the phrase "so far as is practicable" where appearing in s 9(1)(a) of the Mines Safety and Inspection Act 1994.

48 His Worship correctly appreciated that the test for providing a system of work such that, so far as is practicable, was one which avoided exposure of employees to hazards involved a balancing exercise and that employers were not required to anticipate every possible combination of circumstances which might expose an employee to risk. Nor could it be said that his Worship was unappreciative of the fact that "practicable" means reasonably practicable, having regard to the factors mentioned in the definition of that term in s 3 of the Act, including the degree of the risk of the potential injury or harm occurring and the means of removing or mitigating that risk and the availability, suitability and cost of the means referred to for avoiding it.

49 The evidence established that an in-line isolation switch was a reasonable and effective means of reducing the risk of electrocution and that its use would not involve any unreasonable economic burden. The risk of death or severe injury undoubtedly existed, and should have been known by the employer to have existed. While that risk may, fortunately, be regarded as small on the basis of the experience of the trade generally, it was nevertheless one which was widely recognised and warned against in the literature as one which called for effective precautions, the general nature of which were well understood and accepted. True it is that a balance must be struck between a quest for absolute safety and practicable cost effective precautions. But this is a familiar dynamic which has been addressed in many cases and in the published literature (see generally Fleming: The Law of Torts, 9th ed at 130 - 132). In this case the learned Magistrate at trial was certainly alive to the obligation to reach a realistic balance taking into account the factors mentioned in the statute and directed himself appropriately in this regard by a reference to R v Australian Char. I am satisfied that his analysis was correct and that there was no error of fact or law in the conclusion which he reached that the offence charged had been established on the evidence.

50 For these reasons I consider that this appeal should be dismissed.

Safety and Health Act 1984

Health and Safety Act 1985

Safety and Inspection Act 1994

Tenix Defence Pty Ltd v Maccarron [2003] WASCA 165

At a glance

Court

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Judgment (129 paragraphs)

Tenix Defence Pty Ltd v Maccarron [2003] WASCA 165 (30 July 2003)

Parties

Legislation Cited (3)

Cases Cited (9)