WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited - [2002] NSWIRComm 316 - NSWIRComm 1997 case summary — Zoe

NSWNSWIRComm

WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited

[2002] NSWIRComm 316

Industrial Relations Commission (NSW)|1997-05-02|Before: Wright J, Walton J, Schmidt J, Fisher P, Hungerford JJ

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1997-05-02

Before

Wright J, Walton J, Schmidt J, Fisher P, Hungerford JJ

Source

Original judgment source is linked above.

Judgment (78 paragraphs)

[1]

This matter shall therefore be determined accordingly. The question of leave to appeal is to be initially considered. 34 As to whether leave should be granted, the appellant contended leave ought be given to correct an error of law at first instance. This was supported, on the appellant's submission, by the sparsity of authority as to the operation of s53. In particular, it was contended the practice of construction companies, such as the respondent in these proceedings, to delegate all safety responsibilities to a particular site manager was common in industry. Whether or not such a practice can properly be said to meet the statutory defence had not, on the appellant's submission, been the subject of pronouncement by the Full Bench of this Court. Leave should, therefore, be granted. 35 The respondent contended that there was nothing in this appeal which carried sufficient importance as to warrant the granting of leave. That there may be little authority on the operation of s53 was not a proper basis for leave to be granted. It was submitted that the lack of authority can well be explained from the fact that what is 'reasonably practicable' is very much a matter of fact in the particular circumstances of each case coming before the Court. It was contended the same could be said here. The Chief Industrial Magistrate's findings were not on the broad basis contended for by the appellant; they were limited to the particular circumstances of this case. It was submitted that leave ought be refused. 36 I would grant leave to appeal in this matter. There are a great many people employed on construction sites in this State. The construction industry, as has been observed by this Court on numerous occasions, is an inherently dangerous industry in which issues as to the operation of the Occupational Health and Safety Act often arise. Whilst there is some merit in the appellant's submissions as to leave being warranted in order for the purported practice of construction companies to be examined by the Full Bench of this Court, I prefer to base the granting of leave in this matter on a different basis. Leave to appeal should be granted because the matter raises significant questions of law and principle as to the proper operation of s53 of the Occupational Health and Safety Act 1983 (see Knowles v Anglican Church Property Trust (No.2) (1999) 95 IR 380). This conclusion is not diminished by the passing of the Occupational Health and Safety Act 2000 as s28 of that Act is relevantly similar to the provisions of s53 of the Occupational Health and Safety Act 1983. Consideration 37 As noted earlier, I have had the advantage of reviewing the draft judgment of Schmidt J in this matter (including paragraphs [144] to [147] produced after the receipt of the original draft of this judgment) and, unfortunately, find myself unable to concur with her decision.

[2]

1 38 It is a simple but important point that a s53 defence does not arise for consideration in proceedings unless and until the prosecutor establishes to the requisite standard that an offence as charged has been made out: see ABB Power Transmission Pty Ltd v WorkCover Authority (New South Wales) (Inspector Wilson) (unreported, Fisher P, Bauer and Hungerford JJ, CT96/1215, 2 May 1997 at 7). See also Bultitude v Grice (at [77]) where it was stated: The burden of proving the offence beyond reasonable doubt remains with the prosecution, but where provision is made for an exclusion or defence to such liability the defendant bears the burden, in an evidentiary sense, to adduce evidence capable of showing it is entitled to the benefit thereof. 39 Section 53 provides two bases for a defence: where it is established that it was not 'reasonably practicable' for the respondent to comply with its obligations under the statute (s53(a)) and where the offence was a matter over which the respondent had no control (s53(b)): see Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 432 at 458 and State Rail v Dawson at 126. 40 I accept that the Act obliges corporations to engage appropriately qualified persons to ensure that "safety is pursued in an active and ongoing way" and that in meeting its obligations under the Act on a practical level, a corporation may undertake a number of different steps, one of which is the appointment of supervisors with the necessary skills, training and experience to ensure that work is carried out safely. 41 However, it was not, in my view, open to the corporate respondent in these proceedings to entirely delegate its obligations under the Act to a supervisor or manager, regardless of how well qualified he or she may be. The corporate respondent could not simply appoint a manager, instruct him to develop safe systems of work (including work methods and systems for training, supervision and the like) and then, having done so, turn its back on matters of occupational health and safety, taking no further steps to ensure that these systems of work, training and otherwise, had been adequately established and were being complied with. I shall return to this consideration later in this judgment. 42 To adopt what was stated by the Court in WorkCover Authority v Kellogg (No.1) (at 258), these are matters to which a 'managerial mind' should be directed. Whilst the content of such policies and procedures may well be the subject of appropriate advice, ensuring that such steps are taken is a matter for the employer; it is the employer, be it a natural person or corporation, upon whom the Act places the obligation to ensure a safe workplace. 43 Further, the Full Bench in Ridge Consolidated Pty Ltd v Mauger [2002] NSWIRComm 108 (at [32] - [33]), by reference to WorkCover Authority of New South Wales (Inspector Farrell) v Schrader [2002] NSWIRComm 25, recently emphasised the extent of the duty cast upon an employer "in the strongest possible language" by the Occupational Health and Safety Act. The relevant passage from Schrader, adopted by the Full Bench was in the following terms: [56] In short, the duty is to be proactive. This duty was, in my view, correctly and forcefully stated by Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (unreported, CT94/1037, 13 April 1995 at p18) (approved recently by Full Benches of this Court in Profab at [37] and Riley v Australian Grader Hire (2000) 103 IR 143 at [15]): ... 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.

[4]

[59] I would also concur with the observations of Wright J, President, in Ferguson v Nelmac Pty Limited (1999) 92 IR 188 where, in the context of a s15 prosecution, his Honour observed that the Act imposed (at 209): ... an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation. 44 Whilst made in the context of proceedings brought under s19 of the Occupational Health and Safety Act, it is relevant to refer to the observations of the Full Court of Fisher P, Glynn and Hill JJ in WorkCover Authority of New South Wales (Insp. Gordon) v Wallis (unreported, Matter No. CT 1011 of 1995, 14 August 1995) (at 9): The appropriate sections under which to bring charges for failing to provide and maintain a safe system of work and/or conduct an undertaking so as to "ensure" that employees, and other persons at the place of work of the employer are not exposed to risks, are ss 15 and 16 respectively. Such charges must be against the employer concerned. Additionally, under s 50, if an employer corporation contravenes any provision of the statute then each director of the corporation and each person concerned in the management thereof is, subject to the provisions of that section, deemed to have committed the same contravention. But, under the Act, there is no duty cast upon an "employee" while at work, to ensure the health and safety of persons at his place of work by, for example, providing and maintaining plant and systems of work that are safe and without risks to health. (emphasis in original). 45 Their Honours continued (at 11): In our view the fact that an act or omission of an employee while at work occurs in or in relation to the employer's system of work (or lack of one) or conduct of the undertaking does not of itself exculpate the employee from the duty under s 19(a) to take reasonable care not to do or fail to do any act which may affect the health and safety of any person who is at his place of work. … But, irrespective of the duty to co-operate with the employer and/or of the safety or otherwise of the plant and/or system of work operated by an employer, an employee must nevertheless take reasonable care that his own acts or omissions at work do not affect the health and safety of other persons. Sections 15 and 16 and s 19 are complementary and not mutually exclusive. An exemplary case would be where the employer has in fact instituted a safe system of work and has put in place proper rules and procedures governing its operation and has employed apparently competent and experienced supervisors to police the implementation and application of those rules and procedures. If, in those circumstances, one of the supervisory employees failed to take reasonable care in performing those duties and, by a careless act or omission in relation thereto, endangered the health and safety of other persons at work, then the employee/supervisor may, in our view, be liable under s 19(a). On the other hand a supervisory employee would not, in general and without more, be so liable if the act or omission complained of was, in truth and substance, a failure to provide and maintain a safe system of work or otherwise "ensure" the health and safety of employees under s 15; and a similar position would obtain in respect of what was, in substance, a failure under s 16 to ensure that persons not in employment were not exposed to risks while at an employer's place of work. The acts or omissions in such cases would be those of the employer concerned . (emphasis added). 46 Cases such as the present also demonstrate the necessity for the Court to pay particular attention to the charge that has been brought against a defendant. In these proceedings, the charges against the respondent alleged "a failure to provide a safe system of work for the pouring of concrete into a formed up column", particularised as involving a failure to provide a system of work to prevent the potential for fall injury from an elevated platform, the provision of appropriate plant and equipment to prevent such fall injury and necessary instruction regarding a safe system of work to employees engaged in the pouring of concrete on the day of the accident. The alleged failures are limited to the day on which the accident occurred. 47 The Chief Industrial Magistrate considered that, subject to the s53 defence, an offence had been made out. This was not the subject of appeal, and I consider that such a finding was correct in the circumstances of the present case when considered in the light of the charges levelled against the respondent. Indeed, Mr B D Hodgkinson of senior counsel, who appeared with Ms L A Clegg of counsel for the respondent in these proceedings, conceded as much in his submissions. It is then strictly unnecessary to provide any further consideration as to the commission of the offences. However, it is important to further analyse the culpability of the respondent, as these findings are essential to the consideration of the s53 defence and illustrate the way in which the defence under s53 should have been considered in this matter. I shall return to this point after consideration of the relevant authorities. 48 The submissions for both parties before the Chief Industrial Magistrate relied upon the judgments in Cullen v State Rail Authority of New South Wales (1989) 31 IR 207. In particular, the submissions of the respondent before the Chief Industrial Magistrate relied upon the minority judgment of Fisher P, for the proposition that it was not guilty of an offence under the Act. It was contended that his Honour's minority judgment was referred to with approval by the Full Bench of the Industrial Relations Commission in Court Session in State Rail Authority v Dawson. When stated without more, in my view, this is not an entirely accurate description of the way in which the former President's judgment in Cullen v State Rail was treated by the Full Bench in State Rail v Dawson. It will be, therefore, necessary to consider initially the judgment in Cullen v State Rail in some detail. 49 The circumstances in Cullen v State Rail Authority, whilst tragic, may be fairly shortly stated. A gang of workers employed by the defendant authority as 'linesmen' were performing routine maintenance work, cutting back tree growth which was encroaching an inappropriate distance from high voltage powerlines which supplied the defendant's rail network. The work was being conducted during inclement weather at a location near the Mt Kuring-gai rail station. Two members of the gang, Mr Harvey (the supervisor of the gang) and Mr Baillache, in breach of well established and promoted safety policies and procedures put in place by the defendant, climbed a tree (as opposed to using a ladder or other approved method) to remove a branch which extended to some 50cm from a high voltage conductor. The branch was apparently about the size of a man's wrist. Having been handed a 'bush saw' by Mr Baillache, Mr Harvey proceeded to saw through the branch. The branch, still being attached to the tree by a 'finger' of bark, began to fall. In doing so it came into contact with the powerlines, electrocuting the two men in the tree - Mr Harvey suffering fatal injuries. 50 In the proceedings which followed, the Chief Industrial Magistrate found the offence had been made out, but that the defendant was able to avail itself of a defence under s53(a) of the Act. In his Worship's view, the defendant had developed a safe system of work which had been implemented over a long period, producing a good safety record. The persons engaged to perform the relevant work were well experienced, properly trained and were aware of the policies and procedures in place. His Worship considered, given the nature of the work and the experience of the persons engaged, it could not be said that further supervision would have assisted the provision of a safe workplace. The accident had occurred due to the neglect of the individual employees involved and that neglect could not be sheeted home to the defendant to render them liable to an offence under the Act - it had done, it was found, all that was reasonably practicable. 51 On appeal, Fisher P in a minority judgment, agreed, by and large, with the Magistrate. His Honour set out the circumstances surrounding the accident, including that Mr Harvey, the deceased, was the senior man in the gang, that he was well trained and experienced in the system adopted by the defendant and that the system was found in a book of regulations known as the "Mains Section Standing Instruction". This included a requirement that "work should not be performed on location when any part of the body or equipment came within 5 feet of any exposed high voltage conductor". Various techniques were used to control the fall of branches, none of which had been utilised at the time of the accident. Importantly, his Honour noted (at 208): As part of the system of work there appears little dispute that where the senior linesman had any reason for considering that there would be a risk of contact between the limb and the conductor that he could call for an "outage" which meant that by arrangement, on an appropriate occasion, power was removed from the conductor enabling the work to be done with safety. The deceased, the senior linesman on this occasion, could have but did not call for an outage. 52 His Honour set out the relevant provision of the Act and continued (at 209): The Magistrate's finding was that there had been a failure by the employer to maintain the workplace in a condition that was safe and without risk to health. What was the failure? The failure, extensively debated before us, was submitted as a failure to maintain a safe system of work. However, the evidence was that these elements related to a safe system of work which had been in place for very many years. No evidence was called of previous failures. It was also extensively argued on appeal that in some way there was a failure either to supervise adequately or to employ suitably trained personnel. I consider that on the evidence of both qualifications and experience of the deceased employee, including his leading hand status, the fact that he had qualified by training and examination as a linesman and his familiarity over several years working in the several classifications employed in the work makes it unlikely that a case alleging failure to provide a safe system of work or to require that the work be adequately supervised could possibly have been made out. This agrees with the Magistrate's findings. 53 His Honour emphasised the need to demonstrate a failure on the part of an employer and recognised that the absolute duty cast on employers under the Act was different to that case by the common law (referring to Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467). Fisher P then made the following observations on the system then in place (at 209 - 210): As is common in these cases, the evidence relied upon to demonstrate such a failure was substantially the evidence that emerges from the events themselves. To be safe, the system of work being utilised would appear to require an election between alternatives - if the limb to be severed reached within 1.5 metres of the power line, then the person in charge, here Mr Harvey, should have required a power outage, the existence and availability of which was undoubtedly part of the system within which he worked and was well known to him. In the alternative, if the movement of the limb was such that upon severance it might reach towards the power lines, then such a circumstance should have been controlled by the use of the equipment, including ropes and ladders with which the parties were supplied for that very reason. … The evidence strongly suggests that a well known safe system of work was not followed. Mr Harvey, in his familiarity with his employment, may well have taken a short cut in breach of what he had been taught about safe systems and exposed himself to the risks of an inadvertent contact between the severed limb and the power line. Such an observation would account for all the relevant events of the day.

[5]

In circumstances where it is surpassingly obvious that the elements of a safe system of work were not being observed, there is nevertheless a criminal onus upon the prosecution to prove the employer's failure. If at the end of the evidence there is any doubt raised as to whether the events were caused by the failure of the employer or some other unrelated factor, then the employer is entitled to the benefit of that doubt. Here it seems impossible to overlook the possibility that in his familiarity with his employment, the deceased was disregarding what he had been taught about safe clearances, about power outages and about the use of ropes and equipment in order to get the job over and done with. These matters do not have to be proved in an affirmative way so as to displace the prosecution's case. What has to be done is to raise a reasonable doubt as to the proof of the case alleged. 54 The balance of his Honour's findings, particularly as to the issue of a defence under s53 (at 210 - 211) shall be set out later in this judgment in the consideration of State Rail Authority v Dawson. 55 The judgment of Cahill J and Sweeney J, in the majority in Cullen v State Rail Authority, took a different view as to whether the system which had been established, promulgated and promoted was, in fact, sufficient to establish a defence under s53 of the Act. Their Honours emphasised (at 217) that a s53 defence only arose in the context of an offence having been made out against the defendant, and that the onus (on the civil standard) rested upon the defendant to demonstrate that a defence under either paragraph (a) or (b) has been made out. Their Honours continued (at 217 - 218): In the circumstances in which the fatal accident occurred, the relevant danger would have been removed and the workplace thus rendered safe if a power-out had been in place. The evidence is to the effect that power-outs were available and that, if requested, they were generally implemented, with no serious inconvenience to the Authority's rail traffic operations. In the circumstances of the present case and in the context of paragraph (a) of s53, it would seem to us that the Authority had an obligation to prove, on the civil standard, that it was not reasonably practicable for it to comply with its obligation to ensure the safety of its employees by having a power-out implemented at the time the relevant work was being performed. In our view, that obligation was not discharged. Paragraph (b) of s.53 is in two parts. The first matter that a defendant must prove according to the civil onus is that "the commission of the offence was due to causes over which he had no control". In our opinion, no case was made out by the Authority as to that provision. On the contrary, the Authority had the power to lay down safe methods of working, to institute a system of checks and supervision to ensure that such methods were followed, and, in particular, to prescribe procedures as to power-outs which would negate the danger of electrocution when tree-lopping was being performed in proximity to high-voltage lines. The second part of paragraph (b) requires, in addition, that the defendant prove that the commission of the offence was due to causes against the happening of which it was impracticable to make provision. In the circumstances of this case, it is clear that such a defence was not made out. 56 Their Honours then proceeded to discuss the system that had been established and continued (at 219): In our view, where this system fails to satisfy the stringent provisions of s.15 is that it basically leaves to the discretion of the linesman in charge the decision whether a tree-branch should be cut or whether the job should be deferred until a power-out has been implemented. By incorporating provisions allowing the linesman in charge to call for a power-out it recognises the dangers inherent in lopping trees growing in close proximity to high-voltage power lines but it fails to lay down stringent rules as to when such a power-out should be requested. Rather, it relies on the linesman's judgment, based on his training, qualifications and experience, of whether a branch can be cut with safety. 57 The judgment highlights other difficulties their Honours perceived with the procedures which had been established and continued (at 219): In relation to the task of cutting branches of trees growing in proximity to its high-voltage conductors the Authority could have instituted a system of power-out at all times when such work was being performed. Such a system would have negated the danger which resulted in the fatality in the present case. Alternatively, it could have, and did, institute a system whereby a power-out was implemented in some cases but not in others. In order to ensure such a system was safe as required by s.15, it was necessary for it to lay down, and to police, specific rules and procedures designed to guard against and prevent, amongst other dangers, the type of accident which occurred in the present case. In our view, this the Authority failed to do, and the magistrate would have been justified in finding that, in addition to its failure under s.15(2)(d)(i), the Authority had also failed to comply with s.15(2)(a), and for that reason also was in breach of its duty under s.15(l) to ensure the safety at work of its employees. 58 The appeal against the decision of the Chief Industrial Magistrate was upheld by majority. 59 I have analysed the decision in Cullen v State Rail Authority as it appears there was some misconception in the submissions of the respondent as to what was actually decided. The differing views of the Court, in my view, went to what constituted a safe system of work and demonstrated how different approaches might prima facie appear possible in applying the statutory defence of what, in any given circumstance, is reasonably practicable. The power-out option available in that case was described by the Chief Industrial Magistrate as being an "eminently practicable" means of providing a safe work method. The judgment of the majority identified that there was little difficulty or inconvenience imposed upon the defendant's rail network when power outages were effected; the risk was plainly one that was foreseeable and the potential consequences should that risk be realised were, potentially, [nothing short of catastrophic. In those circumstances, it was considered by the majority that the defence of reasonable practicability had not been made out. Whilst a method of work had been established as part of the overall system of work, the method of work was itself unsafe in that it did not require the power out option to be adopted. The above analysis is also useful in demonstrating the important consideration, which seems to be often overlooked, that it is the defendant who bears the onus of proof in proving that a defence under s53 has been made out. 60 It is important to emphasise the fundamental distinguishing feature between Cullen v State Rail Authority and the present case - there was in that case an extensive, long standing, well promulgated safe system of work in which both the supervisor and the remaining member of the gang had been trained. It should also be plainly stated that the judgment of Fisher P is not authority for the proposition that simply placing an appropriately trained, qualified and experienced person in a position of authority and requiring that person to determine and enforce the requisite safe systems of work, without more, is sufficient to avoid culpability under s15 or for that matter to establish a defence under s53 of the Act. Rather, the judgment of Fisher P rests upon the determination that an existing, long-standing system was safe. 61 In State Rail Authority v Dawson, the Full Bench dealt with an appeal from a decision of the Chief Industrial Magistrate, in which his Worship had held the appellant guilty of an offence under s15(1) of the Act for a failure to provide a safe workplace to a gang of workers performing work on overhead powerlines which supplied the main rail line between Sydney and Lithgow. Whilst at first instance one of the particulars to the charge under s15(1) related to a failure to de-energise the power lines on which work was to be performed, this was dismissed by the Chief Industrial Magistrate and not challenged on appeal. The remaining particulars under consideration related specifically and exclusively to the failure to properly supervise; it was this charge which the Chief Industrial Magistrate considered had been made out. 62 The appellant in that case contended it had done all that it could to ensure that there was adequate supervision - that is, on the appellant's submission, the corporate respondent had allocated to the task persons with appropriate qualifications and experience to ensure that the safe work methods that had been established were properly observed. In that matter the appellant had contended that the relevant failure was that of the person put in charge of the operations because he failed to properly organise the performance of the work. He had adequate supervisory staff and there was a failure to use them properly. 63 The respondent had contended that the appellant had failed in two respects: firstly it had failed to take sufficient steps to ensure that the staff it had allocated to the foreman to perform the work were properly utilised and secondly there was, in any event, insufficient supervisory staff allocated for the task. 64 The Full Bench, comprised of McMahon DP, Hill and Hungerford JJ observed (at 120 - 121): Although s 15(l) creates an absolute liability on the employer, it is still nevertheless necessary for the informant to prove, according to the criminal standard of beyond reasonable doubt, that the employer failed to meet the obligation cast on him by the section. In other words, the mere fact that an accident occurs involving an employee, but without more, does not establish any liability in the employer; and that is so unless some causal nexus be established between the breach of statutory duty and the detriment occasioned to the employee. 65 Their Honours were satisfied that there was the requisite causal link between the accident and the failure on behalf of the foreman to adequately supervise the work method being adopted by the deceased. There was a failure by the foreman to give instructions as to the particular method to be employed. The actions of the employee giving rise to his death, having regard to the method employed, could, it was found, have well been "envisaged". However, the question which the Full Bench then turned to consider was whether the failure by the foreman to exercise the required supervision resulted in a failure by the appellant to comply with the duties cast on it. 66 Having noted the concession by the prosecutor that the appellant had, in fact, laid down a safe system of work, their Honours considered Cullen v State Rail Authority. Their Honours set out a lengthy passage from the majority judgment (at 218 - 219) (which is set out earlier) and continued (at 123): It will be seen that the majority in Cullen determined the matter on the employer's failure to ensure a safe system of work by not laying down and policing specific rules and procedures so that any discretion of the linesman in charge could be exercised safely by following rules as to when a tree-branch could be cut or deferring the job until a power-out had been implemented. In the case before us, the critical facts are somewhat different to those in Cullen; no issue arises that the appellant should have de-energised the wires over the rail line, but rather it is alleged the appellant failed to provide the necessary degree of supervision to ensure that Mr McFadyen was safe in the way in which he performed the work. Nevertheless, the majority judgment in Cullen emphasises the stringent nature of the provisions of s 15 and the high duty cast upon an employer in organising work where that work is to be performed under the control of an employee delegated to exercise supervisory responsibilities. It is in that respect of supervision, where, in our view, the decision in Cullen has relevance to the instant case. 67 It is at this stage in their Honours' reasoning that the minority judgment of Fisher P in Cullen v State Rail is discussed. It is appropriate to set out in full the relevant extract from his Honour's judgment referred to by the Full Bench in Dawson, including the emphasis that was placed on parts of the passage by the Full Bench: In circumstances where it is surpassingly obvious that the elements of a safe system of work were not being observed, there is nevertheless a criminal onus upon the prosecution to prove the employer's failure. If at the end of the evidence there is any doubt raised as to whether the events were caused by the failure of the employer or some other unrelated factor, then the employer is entitled to the benefit of that doubt . Here it seems impossible to overlook the possibility that in his familiarity with his employment, the deceased was disregarding what he had been taught about safe clearances, about power outages and about the use of ropes and equipment in order to get the job over and done with. These matters do not have to be proved in an affirmative way so as to displace the prosecution's case. What has to be done is to raise a reasonable doubt as to the proof of the case alleged. …

[9]

My essential finding under this aspect of the case is that the accident probably came about because of the casual acts of negligence of the supervisor, and not by the neglect of any matter over which the employer had control. 68 Having emphasised the judgment of Fisher P in that way, the Full Bench in State Rail v Dawson continued (at 124): The decisions in Cullen point up the not unusual difficulties which arise in determining cases, of this nature where the ingredients of the offence for breach of statutory duty impose a strict liability, as does s 15. It seems to us that the distinction between the majority and minority judgments in Cullen does not relate in any way to a different view of the relevant principles, but rather to the result of their application to the particular facts. There is nothing in the majority judgment to detract from the observations of Fisher P. as to the onus and standard of proof required of the prosecution in criminal proceedings. We respectfully agree with his Honour's observations in that respect. 69 I interpolate my analysis at this point. The judgment in Dawson makes it plain that it was not the judgment of Fisher P in general that was being approved by the Full Bench in that matter, it was merely the "observations of Fisher P as to the onus and standard of proof required of the prosecution in criminal proceedings". It is to be emphasised that Fisher P considered that the system contained within the "book of regulations" was a safe system. It was, in that context (that is, in the context of a qualified and experienced employee departing from an established safe system) that his Honour made his observations distinguishing the responsibility of an employee from his/her corporate employer. 70 Returning then to the judgment in Dawson, the Full Bench further considered whether in the circumstances of that case, there was the requisite failure by the employer (at 124 - 125): It is plain, in our view, that if Mr McFadyen had adopted the first or second method instead of the third method then the accident could not have occurred because he would have been working over the track and sufficiently away from the steel structure. He was a qualified and experienced linesman, and should, therefore, have been aware the work could have been performed by either one of the three methods; equally, he should have been aware that the third method was not as safe as the others by reason of the presence of the steel structure, and the potential which it had to complete a live electric circuit by providing a path to earth. The reason for him choosing the third method is not clear from the evidence, although it seems reasonable to infer, as the magistrate did, that the third method had to be used because of the absence of suitable comealongs and the presence of tension in the wires. The foreman did not supervise Mr McFadyen to the extent of instructing him in which method to use, simply telling him to do the job before the foreman departed to supervise other workers in the gang. The foreman was surprised, later, that Mr McFadyen had used the third and unsuitable method. Clearly, and as we have earlier found, there has been a failure by the foreman to adequately supervise Mr McFadyen in the selection of the safest method to perform the work; and that failure must be seen to have a causal connection with the accident which occurred. However, the appellant has laid down a procedure or system of work to meet the eventuality of employees working within a certain distance of live wires, namely that they are to be personally and individually supervised by qualified employees. A number of persons at the time in question, at least three including the foreman, were suitably qualified to provide that supervision. The foreman failed to provide such a supervision, and, notwithstanding the absence of the leading hand, there was no redeployment by him of other qualified and available employees; and there is no evidence of any causal connection between the absence of the leading hand and the failure by the foreman to adequately safeguard Mr McFadyen in the performance of his duties.

[10]

Whilst we have found there was a failure to relevantly supervise Mr McFadyen, that failure was the failure of the foreman. On balance, and viewing the evidence as a whole, we are unable to be satisfied beyond a reasonable doubt that the failure was also that of the appellant. There was no suggestion in the case that the appellant had not laid down a safe system of work, only that it had not supervised Mr McFadyen so as to ensure his safety. But the facts are clear in that there was ample supervision available through the foreman and at least two other qualified linesmen; it was a matter of their proper deployment according to the work then in hand. That deployment, particularly on a remote site, must be a matter for the senior supervisor present . There was in fact a failure by the foreman to adhere to the procedure or system of work laid down in clear terms by the appellant. The appellant, in our view, cannot be held liable under s.15 in such a situation, once it be found qualified supervisors have been provided by it. (my emphasis) 71 I consider that the Full Bench in State Rail v Dawson was at pains to emphasise that it was dealing with the failure of an employee to properly adhere to a system which had been established. It was a failure of an employee to properly utilise the employees provided to him, in the context of a well established and well settled safe work method which had been promulgated to all employees. Again, it should be emphasised that State Rail v Dawson is not authority for the proposition that the corporate defendant may select an appropriately qualified employee, delegate to him all authority necessary to establish and implement a system of work, and thereby, without more, meet the requirements of s15 of the statute. It is that initial step, the establishment of the safe system of work and, in particular, the method of work for the pouring of the concrete pillars so as to avoid the risk of potential fall injuries, that is the gravamen of both culpability and s53 issues in the current proceedings. 72 In Genner Constructions, the Court dealt with an appeal by the defendant at first instance against a conviction under s15 of the Occupational Health and Safety Act 1983 for a failure to properly train its workforce. The appellant was a roadworks and subdivision contractor which was engaged in the widening of a portion of the Moss Vale Road at Burradoo. An employee of the defendant, Mr Ingram, had been placed in control of the relevant worksite and, in particular, in control of trucks entering and exiting the site. At first instance there was found to be a safe system of work in place which provided for vehicular access to and egress from the worksite. At the time of the accident, a subcontracted grader driver, a Mr Holzigal, in conjunction with Mr Ingram, determined that it was necessary to alter the system of access and egress to the site due to certain weather conditions. The alteration to the work method was unsafe. Mr Ingram was struck and killed by a truck as it left the site. The charges, which at first instance had been held to be made out, and were under consideration on the appeal, alleged the defendant had breached the Act by failing to properly train Mr Ingram, the person placed in charge of the site, so as to permit him to properly deal with alterations to the established system of work, should such a need arise. That such a need may have arisen was considered to have been reasonably foreseeable (in the relevant sense) both at first instance and on appeal. Whether the system of work adopted was otherwise generally safe did not arise. 73 The appellant contended it had adequately trained its employee by way of 'on the job training' and that the accident arose from a casual act of negligence in disregarding that training. Whilst the charges levelled against the respondent in these proceedings do not relate to a failure to provide proper training, it is instructive to have regard to the way in which the Full Bench in Genner Constructions approached the adequacy of the system of training under consideration, when considering the defendant's submissions in these proceedings. The Full Bench in Genner Constructions stated (at [57] - [59]): [57] The appellant pointed to the evidence of Mr Genner to the effect that he had provided regular "on-the-job" training and instruction to Mr Ingram over many years. The evidence of Mr Genner was that this training encompassed issues of safety, including methods of directing vehicles entering and leaving worksites. Inspector Chadwick of the WorkCover Authority and Mr Johnson, an expert called by the appellant in the proceedings at first instance, agreed that "on-the-job" training can be a very effective method of training workers. However, whilst such training may, with respect to particular work, be sufficient to ensure a safe workplace, there will be many cases in which more detailed, comprehensive or systematic training and instruction will be required: see, for example, WorkCover Authority of New South Wales (Inspector Penfold) v Pacific Dunlop Ltd t/as National Cables [2000] NSWIRComm 33 at [24]-[25] and WorkCover Authority of New South Wales (Inspector Egan) v Bituminous Products Pty Ltd [2001] NSWIRComm 43 at [71].

[12]

[59] In this case, we are satisfied beyond reasonable doubt that the training provided to Mr Ingram was not adequate to ensure he was not exposed to risks to his health and safety in relation to the control of vehicular movements onto and off the worksite. The training received by Mr Ingram over the years he had been working for the appellant was solely informal, ad hoc training and provided directly by Mr Genner. The training was not documented and the appellant's procedure for controlling vehicles entering and leaving a worksite were not recorded or refined. In our view, it is proper to conclude there was not sufficiently systematic or comprehensive training so as to ensure that Mr Ingram, who was left in control of the worksite, was sufficiently trained to react to changing circumstances and at the same time to ensure the site remained safe. 74 The following observations are also pertinent: [61] We also consider that it is properly open to conclude the inadequacy of the training received by Mr Ingram from the evidence of his actions on the day of the accident. It was contended by the appellant that the actions constituted an inadvertent or casual failure to observe the appellant's safe system of work and that Mr Ingram disregarded his many years of training. We do not consider that this view of the evidence is sustainable. Mr Genner gave evidence that Mr Ingram was a competent and diligent employee and that view was supported by another witness, Mr Currall, who had worked with Mr Ingram on a number of worksites. We consider it is not possible to infer that Mr Ingram simply disregarded the dangers created when he acquiesced in the alteration to the working arrangements. The rational conclusion from the evidence was that Mr Ingram did not fully envisage the risks created by altering the vehicle movements by reason of a failure to adequately train him in relation to the safe operation of the worksite. 75 The Full Bench in Genner Constructions also gave consideration to a defence under s53 of the Act (at [66] - [69]), holding that no such defence was established on the evidence. Having referred to observations of the Full Bench in State Rail v Dawson (at 126) and the judgment in Kellogg (No.1) (which was adopted by the Full Bench in Kennedy-Taylor v WorkCover Authority) the Court continued: [68] … It may be that, in some cases, it would not be practicable to guard against a detriment to safety occasioned by an appropriately trained and instructed employee departing from a known safe procedure. This may be so because the risk of the employee failing to follow procedures was not reasonably foreseeable or on a comparison of the training and instruction required to ensure the employee adhered to those procedures with the risks created. There are limits to the degree of instruction which can be expected to be provided to an experienced employee.

[13]

[69] However, we do not consider that the present is such a case. Having regard to the findings made in relation to the inadequacy of the training received by Mr Ingram and the instruction given to him and to Mr Holzigal on the day of the accident, it is not possible to conclude that the risks to safety were caused solely by the failure of the two workers to observe the appellant's ordinary procedures. The Act obliges employers not merely to establish safety procedures but also to ensure those procedures are sufficiently promulgated to its workers who are themselves adequately trained in their implementation. In light of the findings made in relation to the inadequacy of the training and instruction afforded by the appellant, we are not satisfied the appellant demonstrated on the probabilities, that it was not reasonably practicable to make provision for more detailed and thorough training and instruction for those working on its worksites. The s53 defence must fail . (emphasis added) 76 See also the judgment in WorkCover Authority of New South Wales (Inspector Barbosa) v Newstart 150 Pty Ltd t/as Stylewise Interiors (2002) 113 IR 78 where the Court emphasised, for there to be a "system" of on the job training, there needed to be a "coherent and systematic process for the instruction of employees" (at [82] and later at [89]). 77 The passages cited from Genner Constructions serve to illustrate the fundamental failing in the system of work provided by the defendant in the current proceedings. The Court in Genner Constructions and in Newstart 150 emphasised that for a system of training to be adequate in accordance with an employer's obligations under the Act, what must be shown is that the "system" is "sufficiently systematic or comprehensive", contains appropriate detail and, importantly, is "sufficiently promulgated to its workers who are themselves adequately trained in their implementation". In Genner, these observations were made in a context where the particular method of work (in that case the method of work providing for the entering and exiting of trucks to a worksite) was not the subject of consideration on appeal. In Newstart 150, there was both a failure to provide a safe method of work and a consequent failure to properly train the workforce (see [67] - [69]). 78 Thus, in order to meet the requirements of s15 of the Act, the system of work must be "coherent and systematic" so that all employees who are performing work on any given site can properly understand what is being required of them. That is, to reiterate what was stated by the majority in Cullen v State Rail Authority (at 219): In order to ensure such a system was safe as required by s15, it was necessary for it to lay down, and to police, specific rules and procedures designed to guard against and prevent, amongst other dangers, the type of accident which occurred in the present case. 79 In this matter, there is no challenge to his Worship's finding that the system of work adopted by the respondent through its employee Mr Eckford, constituted a risk to safety contrary to s15 of the Act. The matter turned upon the respondent's defence under s53, both at first instance and on appeal. However, it is important to examine just what gave rise to the risk to safety in this case. 80 The breach resulted simply from the adoption by Mr Eckford of a plainly unsafe work method. It is essential, as in Cullen v State Rail Authority, to examine the system of work established by the respondent. In this case, there was no documented method of work by the respondent in evidence, either for the normal method of pumping the concrete into the formwork pillars where rubber hosing from the pumping truck was positioned vertically over the formwork pillar or the altered method of work where the hose could not be so positioned. The charges brought against the respondent did not merely allege a failure by the respondent to provide and maintain a safe system of work for the concrete pouring operation (in the sense of a particular work method adopted at the site). True it is, the charges included a failure to provide a safe system of work in this respect, but it is the failure of the employer's system to ensure that a safe work method was adopted for the pouring of concrete from the outset that is the subject of prosecution (and, in particular, the failure of that system to ensure a method of work was adopted that prevented the risk of fall injuries). 81 His Worship confined his attention in examining culpability (and ultimately the s53 defence) to the adoption of an unsafe work method by Mr Eckford. However, there was no examination of the failure of the respondent to specify at all, a work method for the carrying on of concrete pumping operations that was safe, and in particular, where the boom was of insufficient length to, of itself, permit pumping to safely occur. The system of work established by the respondent at this workplace was, in essence, whatever Mr Eckford directed. The corporate managerial mind of the respondent was at no stage, nor in any way, turned to what was actually occurring on site. As was clear on the evidence of Mr Taylor set out above, prior to the accident, he was not aware of what work methods were to be adopted at the site. The particular work method adopted was "a site taken decision". What is of greater concern and will require further reference shortly, is that Mr Taylor, as the CEO of the respondent corporation, was aware of a standard work method for the pouring of concrete pillars involving the use of scaffolding and that there was "not really" any time saving factor gained in the adoption of the work method involving the scissor lift. In the absence of some periodic checking, reporting or monitoring of what Mr Eckford was, in fact, requiring at the workplace, it is difficult to envisage how a corporate respondent could itself, as is required by the Act, have ensured there was adopted at the Macquarie site, safe work methods sufficient to provide the foundation for safe systems of work and meet the requirements of the Act. 82 In making those observations, however, I would not wish to be taken as establishing a requirement that all businesses must develop extensive written documents setting out, in detail, every aspect of a particular task. What is required is dependent upon the particular circumstances and will be heavily influenced by the nature of the work and the exigencies of the particular work environment. It is inappropriate to attempt to spell out what is required in any given situation. However, one thing is clear. The method of work, as one component of a safe system of work, is a foundational element on which other matters such as training, supervision and the selection of appropriate plant and equipment may often depend for their effective operation. It is the employer's obligation to "ensure" that the system is safe. The respondent's system of work did not ensure that the method of work adopted was safe. Indeed, it did not purport to turn its mind actively to the appropriate system to be adopted, although, on the evidence such, a system was available (and known). It is for this reason the respondent was guilty of the offence. It is against these assessments that questions of "reasonable practicability" under s53 of the Act must properly be tested. 83 There was no question that the respondent had the requisite control over the worksite and, therefore, s53(b) does not arise. Rather, the respondent submitted it had done all that was reasonably practicable. As to what is required when considering a defence under s53(a), regard should be had to the judgment in WorkCover Authority of New South Wales (Inspector Byer) v Cleary Brothers (Bombo) Pty Ltd (2001) 110 IR 182: [87] It is evident from these authorities that what is required by s53(a) of the Act is a balancing of the nature, likelihood and gravity of the risk to safety occasioning the offence with the costs, difficulty and trouble necessary to avert the risk. At one end of the scale, it could not be reasonably practicable to take precautions against a danger which could not have been know to be in existence: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd at 362. Similarly, if the happening of an event is not reasonably foreseeable then it will not generally be reasonably practicable to make provision against that event: see WorkCover Authority of NSW (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381; WorkCover Authority of NSW v Kellogg (Aust) Pty Ltd at 259 and Austin Rover Ltd v Inspector of Factories at 627 per Lord Goff and at 635 - 636 per Lord Jauncey of Tullichettle. [88] At the other end of the scale, there will be cases, such as the present, in which known or obvious risks to safety exist. In these circumstances, the defendant will not have established a defence under s53(a) of the Act where it was reasonably practicable to have complied with the Act by ensuring that persons were not exposed to those risks. This may be the case because no measures were reasonably available or because measures which were available were not reasonably practicable. As has been discussed, the assessment of the reasonable practicability of those steps requires a balancing of the quantum of the risk with the sacrifice (in money, time and trouble) in adopting the measures necessary to avert the risk. In my view, where there is a known risk which entails the potential for serious injury to persons in the workplace, the defendant will generally have to demonstrate that the costs, difficulty or trouble occasioned by the measures significantly outweigh the risk. This must be done by reference to the charge as brought by the prosecutor. 84 Those passages were subsequently approved by the Full Bench in Legge v Coffey Engineering Pty Ltd (No 2) (2001) 110 IR 447 at [38] and in Bultitude v Grice at [71]. 85 It may well arise that due to the exigencies of a particular work situation, it may have been impractical to have developed a safe system of work in advance. The particular circumstance may not have been a matter that was reasonably foreseeable in the way that phrase has been used in the authorities: see Bultitude v Grice (at [68]): Reasonable foreseeability of a risk or detriment to safety is relevant to the extent that it assists in determining whether it was reasonably practicable to avoid the risk. 86 Regard should be had in this respect to the judgment in Kellogg (No.1) (adopted by the Full Bench of the Court in Kennedy-Taylor v WorkCover Authority (at 82), Genner Constructions (at [67] - [68]) and Bultitude v Grice (at [68])): To establish a defence under s53, the defendant must prove, to a civil standard, either that it was not reasonably practicable to comply with the Act or that the commission of the offence was due to causes over which the defendant had no control and against the happening of which it was impracticable to make provision: see Drake at 48-49; Sydney City Council v Coulson (1987) 21 IR 477 at 480; and Italo Australian Construction Pty Limited v Parkes (1988) 24 IR 428 at 431. So much was accepted by the defendant in this case.

[15]

This does not remove the obligation, to which I have earlier referred, of an employer to adopt a proactive approach to safety issues which seeks to discover and remedy potential risks to its employees and others. It is not a question of whether the employer did envisage a particular danger, but rather whether it should have. 87 In the present case, however, it has not been contended that the risk was not foreseeable in the relevant sense. Such a submission could not have been properly accepted, in my view, in light of the evidence of Mr Eckford and the fact that he had actually stopped the construction of the concrete pillars due to safety concerns. 88 Mr Hodgkinson submitted, in the course of argument, that merely putting in place a supervisor would not meet the obligations imposed on a corporation. Although it was important to recognise the dynamic nature of a construction site (the system of work devised by the company needed to be able to adapt to the changing needs of the work environment by putting an appropriate person in charge of site safety matters), Mr Hodgkinson conceded, properly in my view, that merely putting an appropriately trained and qualified person in such a role was not enough. It was contended that the supervisor needed to be properly trained and experienced so as to have the necessary skills to meet the changes of a dynamic working environment. The supervisor needed to be fully aware of his responsibilities in that role. The remainder of the workforce needed to be aware of his authority in that regard. 89 Further, on Mr Hodgkinson's submission, this may not be enough to satisfy the obligations of an employer under the Act. His submission in this regard was recorded in transcript in the following terms: [I]t is not enough to put in place a system and put the system on the shelf even if you trained everybody in the system. In the same way if your system relies upon the discharge of certain persons of certain functions for which they are trained and qualified you check from time to time that they are in fact discharging those obligations. So you have to balance any change in the circumstances to see if there is such a change and make sure the training or the qualifications they have are relevant. 90 I would agree with these submissions. However, on Mr Hodgkinson's submission, these issues to do not arise on the facts of this case because the respondent was charged only with an offence that is limited to a single day. On his submission, whilst there may well be a requirement for the company to check on the actions of its supervisor, there could be no suggestion that there is a requirement for that checking to be done on a 'minute by minute basis'. There is nothing to suggest that the company failed because it failed to check on the operations taking place on that particular day. Such a requirement would amount to a requirement, on a day-to-day basis, to supervise the supervisor. This, on senior counsel's submission, would be a nonsense. 91 There is some merit in the submissions of senior counsel for the respondent. However, they ultimately fail to acknowledge the final link in the chain that would have been necessary to make out this argument. There was no evidence that the "system" of the respondent in these proceedings did, in fact, involve the respondent, in any way, checking on the actions of Mr Eckford - be it by way of reporting to the board or in some other way. That Mr Taylor only became aware of the work method utilised in pouring the concrete pillars after the accident, is consistent with there being a lack of this final fail safe checking mechanism. 92 As is clear from the evidence of Mr Eckford given in cross-examination, he was the one responsible for site safety, he was the one with full authority to make alterations to the work methods and he was the one who did in fact make alterations to the work methods following the accident. There was nothing in the evidence of Mr Eckford, Mr Taylor, or any of the other evidence on behalf of the respondent to indicate that the "system", for which Mr Hodgkinson contends, contained this final element - that is, the respondent satisfying itself that such safety steps were, in fact, being taken by its qualified, responsible site manager. How then could the respondent satisfy itself that the method of work being adopted was safe? 93 The respondent's failure in this regard may be likened to that found by the majority in Cullen v State Rail Authority. As was emphasised earlier, the majority in that case found that the defendant in those proceedings was at fault for not requiring the relevant power lines to be de-energised before tree trimming work commenced. The system adopted by the company was unsafe for that very failure. The defendant had itself failed to ensure that its system was safe. 94 What, in my view, will meet the test of reasonable practicability under s53 of the Occupational Health and Safety Act 1983 in any given case is a matter of fact of which the defendant bears the onus (in an evidentiary sense). It plainly calls for a balancing of the various interests of the particular employer in their particular circumstances against the stringent and explicit policy expressed in the Act to ensure that all places of work are safe and without risk to health and safety. Whilst it may well be that in an appropriate set of circumstances, a particular task will not have a standard safe work method (be it documentary or otherwise) or a policy dealing with variations to a particular settled work method, should the exigencies of a work situation make such an adjustment necessary, it must be kept firmly in mind that in order to establish a defence under s53 a defendant must be able to show that it had done all that was reasonably practicable. This is how the balancing of interests expressed in Cleary Bros must operate. However, for a defendant to establish such a defence in the absence of some pre-established safe work method, would, in my view, at the minimum, require evidence of the particular or unique circumstances that made the establishment of a safe work method in advance of the activities being commenced, impracticable. By their nature, such situations would be rare. Perhaps a particular work situation may not be reasonably foreseeable in the way foreshadowed by Hill J in WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362. There was no such evidence here. 95 There was no evidence of a safe work method adopted by the respondent for the pouring of concrete pillars at all, be it a more general standard work practice adopted at the respondent's sites more generally, or a standard practice for the Macquarie site. The evidence of Mr Eckford would indicate that there was a safe method of work known to the respondent, involving the use of scaffolding surrounding the formwork pillars. The respondent in these proceedings is a substantial construction company - it is reasonable to infer that concrete pouring activities, similar to those being undertaken on the day of the accident, were not infrequently an aspect of the respondent's business. Given the nature of the respondent's business, it would, in my view, be difficult to establish that it was impracticable to establish some form of standard safe work method, or a policy that would operate where the standard safe work method needed to be altered. 96 One further matter should be emphasised in relation to a purported "system of work". In accordance with the observations of the Full Bench in Genner Constructions, the respondent must be able to show that the alleged system of work was sufficiently certain in its operation, sufficiently promulgated and enforced so as to ensure the relevant workforce is aware of what is required and that the employer has taken steps to ensure the work method is safe and adhered to. I emphasise again that it is the employer who is to ensure the method of work is safe. 97 As earlier mentioned, the respondent's answer amounts to the following proposition: it picked the appropriate person for the job and then left it to him. It was his job to establish the safe work practices. It was his job to make sure they were followed. That was the system referred to in the evidence of Mr Eckford as "in utilisation within the Fletcher's organisation prior to this incident". The respondent corporation can do no more than act through its employees. This contention does not, in my view, establish a basis for a finding of not guilty in this matter. 98 As was emphasised by the Full Court in State Rail Authority v Dawson (at 125 - 126): In so concluding, however, we would wish to comment on the submission put by Mr Kenny to the effect that an employer could not be held vicariously liable in criminal proceedings for a failure by any of his employees in the performance of their work. For that proposition he relied upon Collins and Tesco. Whilst the submission, as a general proposition, may have some basis, it really puts the matter far too broadly to the point of probable error. Where a criminal offence is created by statute, such as s15 of the Occupational Health and Safety Act, and where strict liability is imposed, it is to the statutory provision itself that attention needs to be directed to determine whether an employer incurs liability for the acts of his employees. And this is particularly so where an employer is a large corporate entity which, of course, can only act or fail to act through its officers and employees. The cases under s 15 abound with employers being held liable for the conduct of their employees, and Cullen and Italo are but two recent examples. The answer to Mr Kenny's submission, in our view, lies not in the concept of vicarious liability but rather whether the facts of a particular case show a causal connection between the detriment to safety and what the employer had or had not done. 99 What was the failure of the respondent in this case? The answer is plain. The respondent's system of work did not ensure that there was a safe work method established by the person to whom it had delegated that task; nor did it ensure that a safe work method was adopted on site. The Act stipulates that it is the employer who is to ensure that a safe workplace is provided. Whilst it is trite the company can only meet that obligation through the actions of natural persons, it can only delegate the authority to make it happen, it cannot delegate the responsibility imposed by the Act upon it to ensure that it is done. The respondent is guilty of the offence charged. 100 The absence of some failsafe checking mechanism by management in this case demonstrated the risk which the company took in totally delegating its obligations under the Act. The evidence demonstrated that Mr Taylor, the CEO of the company, knew that a standard work method for the pouring of concrete was available, utilising scaffolding erected around the formwork pillars. This could hardly be considered surprising given the nature of the respondent's business - the pouring of concrete pillars would plainly be one of the more frequently undertaken aspects of the respondent's operations. No evidence was led demonstrating the particular circumstances would have prevented or precluded the safe work method for pouring concrete pillars, involving the use of scaffolding, being utilised. Quite the contrary. The evidence of Mr Eckford was that there was nothing to prevent this method from having been adopted prior to the accident. Indeed, this was the work method adopted following the accident. This factor, in itself, is relevant to a finding as to the respondent's guilt.

[16]

101 Although the judgments in Cullen and Dawson were clear pronouncements of the law, misunderstandings have developed in their application. Given the importance of clarifying the principles relating to a defence under s53 of the Act, and of obviating further misunderstandings, I intend to risk repetition by providing a summary of the key elements of my judgment: 1. A corporate respondent cannot discharge its responsibility by simply delegating its entire obligations under the Act. 2. As the Full Bench was at pains to point out in Ridge Consolidated Pty Ltd v Mauger, the Act is designed to protect against human errors (including foolish disregard for personal safety) as well as technical risks. Appropriate established systems or procedures known and understood in advance by the workforce, together with a clear, practical, chain of supervision or management, go some considerable way to achieving this aim. The mistakes of an individual are less likely to be made, or left unrectified, if that individual is accountable or if an appropriate system of checks and balances has been instituted. 3. The majority in both Cullen and Dawson based their judgments upon the existence of an offence, examined against the background of well-established safety-systems, unlike the present case in which there was effectively no system at all, established or otherwise. The extent to which an employer could be held accountable for the conduct of a supervisor was assessed against that same background. Where an employer has established, maintained, and promulgated a relatively detailed system of safe work practices, it becomes meaningful to consider whether that employer has done all that is reasonably practicable. The highest that the respondent could put its "system" in this case was to say that it had delegated establishment and implementation of safe work procedures to the unmonitored discretion of a responsible individual: a unpersuasive argument in the light of Cullen where the majority held that a comparatively small degree of discretion left to the linesman rendered the otherwise detailed system unsafe. The establishment of the offences in this case, both of which included a failure to provide a safe system of work, was not challenged on appeal. The very establishment of an offence assumes a causal nexus between the conduct of the respondent and the consequent risk to the health, safety and welfare of its employees: see Kellogg at 253. 4. The availability of a defence under s53(a) must be assessed by reference to the offence charged and found: ABB Power Transmission; Kellogg No. 1 and Cleary Bros . The majority in Cullen stated (at 217 - 218):

[36]

116 The two paragraphs of the earlier submissions relied upon were: '13. This proposition is supported by the weight of authority. In Cullen v State Rail Authority of NSW (1989) 31 IR 207 at 219, the majority held: "…In our view, where this system fails to satisfy the stringent provisions of s15 is that it basically leaves to the discretion of the linesman in charge the decision whether a tree-branch should be cut or whether the job should be deferred until a power-out has been implemented. By incorporating provisions allowing the linesman in charge to call for a power-out it recognises the dangers inherent in lopping trees growing in close proximity to high-voltage power lines but it fails to lay down stringent rules as to when such a power-out should be requested. Rather, it relies on the linesman's judgment, based on his training, qualifications and experience, of whether a branch can be cut with safety." This view was approved by Walton J, Vice President, IR Comm. NSW in WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd , unreported, IR Comm NSW, 19 October 1999 (Matter Nos. IRC 4732 and 4733 of 1999 at p38: "I note, though also not necessary to my decision, that one reason for the defendant's failure to fulfil its duties that it failed to apply a managerial mind to the assessment of the risks inherent in the job delegated to the two operators. The duty to assess the risk of the task allocated to Mr Husakovic and Mr Jovanovic should have been taken by management and could not be delegated, in particular, to the operators themselves: Cullen at 219. In that regard, I note the decision of the English Court of Appeal in R v British Steel Plc [1995] ICR 586 at 592 to 594 where it was held, in relation to parallel UK legislation, that a corporate employer could not avoid liability on the basis that the company at senior management level had taken all reasonable care to discharge its duty by delegating its health and safety obligations." 15. Senior management cannot delegate or abdicate its statutory obligations under the OHS Act to, here, the site manager. Eckford's failures were the failures of the defendant. Eckford, as site manager, acted as the representative of this employer, the defendant: see WorkCover Authority of NSW (Inspector Gordon) v Gregory Ronald Wallis , Industrial Court of NSW, CT 1011 of 1995, unreported, Fisher CJ, Glynn, Hill JJ at pp 11, 12, 14 and 17.'

Parties

Applicant/Plaintiff:

WorkCover Authority of New South Wales (Inspector Patton)

Respondent/Defendant:

Fletcher Constructions Australia Limited

Legislation Cited (1)

Judiciary Act 1903(Cth)

Cases Cited (39)

CITATION : WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited [2002] NSWIRComm 316 APPELLANT: WorkCover Authority of New South Wales (Inspector Patton) PARTIES : RESPONDENT: Fletcher Constructions Australia Limited FILE NUMBER: IRC5014 of 2001 CORAM: Wright J President at 1; Walton J Vice-President at 5; Schmidt J at 103 CATCHWORDS : Appeal - Appeal from decision of Chief Industrial Magistrate - Chief Industrial Magistrate found offence proven but that a defence under s 53(a) had been established - Occupational health and safety - Prosecution arose from accident on defendant's construction site - On appeal defendant conceded it was guilty of offence but that it had done all that was reasonably practicable in the circumstances - Defendant contended dynamic nature of a construction site meant it needed the capacity to alter work methods as part of its daily operations - Corporate defendant could only act through its employees - System of work adopted by defendant involved selection of appropriately qualified person as site manager and delegating to him all authority necessary to design and implement safe methods of work - Defendant did not check to ensure that its direction to develop safe methods of work were developed and implemented on site - Defendant submitted that by appointing an appropriately trained and qualified site manager the defendant had done all that was reasonably practicable to comply with the obligations imposed by the Occupational Health and Safety legislation - Nature of obligation imposed by s 15 of the OH&S Act 1983 - Practical effect of such an obligation for a corporate defendant - Matters of health and safety are non-delegable - Matters of health and safety are matters to which a managerial mind should be directed - Distinction between a system of work and the particular methods of work - Methods of work merely part of a system of work - Inspector Cullen v State Rail Authority and State Rail Authority v Dawson considered and explained - Operation of s 53(a) of the OH&S Act 1983 - By failing to ensure that the site manager had developed and implemented safe methods of work defendant corporation had not done all that was reasonably practicable to ensure that its place of work was safe - Offence proven - Conviction entered Industrial Relations Act 1996 s197 LEGISLATION CITED : Occupational Health and Safety Act 1983 s15 s16 s19 s53 Occupational Health and Safety Act 2000 s28 ABB Power Transmission Pty Ltd v WorkCover Authority (New South Wales) (Inspector Wilson) (Unreported, Fisher P, Bauer and Hungerford JJ, 2 May 1997) Bultitude v Grice Constructions Pty Limited [2002] NSWIRComm 20 Caltex Petroleum Ltd v Harmer (1999) 92 IR 264 Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 Collins v State Rail Authority (NSW) (1986) 5 NSWLR 209 Crampton v The Queen [2000] HCA 60 Cullen v State Rail of New South Wales (1989) 31 IR 207 Department of Mineral Resources (Insp McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 432 Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Insp Guillarte) (2001) 110 IR 57 Italo Australian Construction Pty Limited v Parkes (1988) 24 IR 428 Kennedy-Taylor v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 57 CASES CITED : Knowles v Anglican Church Property Trust (No.2) (1999) 95 IR 380 Legge v Coffey Engineering Pty Ltd (No 2) (2001) 110 IR 447 Ridge Consolidated Pty Ltd v Mauger [2002] NSWIRComm 108 State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 WorkCover Authority of New South Wales v Ridge Consolidated Pty Ltd [2002] NSWIRComm 11 WorkCover Authority of New South Wales (Inspector Barbosa) v Newstart 150 Pty Ltd t/as Stylewise Interiors (2002) 113 IR 78 WorkCover Authority of New South Wales (Inspector Byer) v Cleary Brothers (Bombo) Pty Ltd (2001) 110 IR 182 WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 WorkCover Authority of New South Wales (Inspector Farrell) v Schrader [2002] NSWIRComm 25 WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Australia) Pty Limited (No. 1) (2000) 101 IR 239 WorkCover Authority of New South Wales (Insp. Gordon) v Wallis (Unreported, Fisher P, Glynn and Hill JJ, 14 August 1995) WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362

(1999) 92 IR 264

(1985) 11 IR 467

(1986) 5 NSWLR 209

(1989) 31 IR 207

(1999) 92 IR 8

(1999) 90 IR 432

(2001) 110 IR 57

(1988) 24 IR 428

(2000) 102 IR 57

(1999) 95 IR 380

(2001) 110 IR 447

(1990) 37 IR 110