WorkCover Authority of New South Wales (Inspector Childs) v Stimson

LEGISLATION CITED: Occupational Health & Safety Act 2000

Pemble v The Queen (1971) 124 CLR 107 Spies v The Queen (2001) CLR 603 Sydney County Council v Coulson (1987) 21 IR 477 at 480 Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Maclean v Tedman & Anor (1984) 155 CLR 306 CASES CITED: Riley v Australian Grader Hire Pty Ltd (2000) 103 IR 143 WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Ltd & Anor [2004] NSWIRComm 207 WorkCover Authority of New South Wales (Inspector Childs) v Stimson [2004] NSWIRComm 395 WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd (2002) 123 IR 121

PROSECUTOR Mr P Skinner of counsel Solicitor: Ms L Barnes WorkCover Authority of New South Wales LEGAL REPRESENTATIVES:

DEFENDANT Mr G Wendler of counsel Solicitor: Mr R Van Houten Van Houten Solicitors, Barristers & Notary Public

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Prosecution under s 9 of the Occupational Health & Safety Act 2000

1 In WorkCover Authority of New South Wales (Inspector Childs) v Stimson [2004] NSWIRComm 395, Barry John Stimson ("the defendant") was found guilty of an offence under s 9 of the Occupational Health & Safety Act 2000 ("the Act"). 2 The matter was listed for submissions on penalty on 21 April 2005. At the commencement of the hearing on that day, Mr G D Wendler, counsel for the defendant, took the Court to [116] of my earlier judgment which was in the following terms: The defendant is therefore guilty of an offence under s 9 of the Act in respect of the charge brought in these proceedings unless he is able to make out a defence under s 28 of the Act. Mr Wendler did not rely upon s 28. The defence raised was that there was no causal connection between the omission and the detriment to safety because of Mr Clissold's wilful disobedience. I have already rejected this submission for reasons set out earlier in this judgment. 3 Mr Wendler submitted that the above finding did not absolve the Court from considering whether the evidence came within the ambit of either s 28(a) or s 28(b) of the Act. 4 Section 28 of the Act is in the following terms:

It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that:

(a) it was not reasonably practicable for the person to comply with the provision, or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision. 5 Mr Wendler took the Court to a judgment of the High Court in Pemble v The Queen (1971) 124 CLR 107, submitting that, whether counsel mentions s 28 of the Act or not, or whether anyone else did, if there is a prima facie case in respect of s 28, the Court is obliged to deal with it. 6 Counsel referred to the judgment of Barwick CJ, McTiernan and Windeyer JJ (Menzies and Owen JJ not dissenting on this issue) in respect of this principle. Barwick CJ stated at 117 and 118: ... Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part. In Mancini v. Director of Public Prosecutions [1942] AC 1, provocation was not relied upon by defending counsel. In Kwaku Mensah v. The King [1946] AC 83, provocation was not raised at the trial nor in the reasons in the appellant's case for the consideration of the Privy Council. But, there being material before the jury on which they could properly have found provocation so as to reduce the crime from murder to manslaughter, their Lordships considered the absence of any direction as to provocation when that matter was raised by counsel in argument before them for the first time; and for lack of appropriate direction set aside a conviction for murder. Here, counsel for the defence did not merely not rely on the matters now sought to be raised; he abandoned them and expressly confined the defence to the matters he did raise. However, in my opinion, this course did not relieve the trial judge of the duty to put the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused. 7 Menzies J stated at 133: ...Moreover, counsel for the defence cannot effectively disclaim a defence open to the accused upon the evidence. The judge must submit that defence to the jury. Even less can counsel concede a matter of law to the disadvantage of the accused. The law is always for the judge as counsel for the defence rightly told the jury. 8 It followed, Mr Wendler submitted, that I was not precluded from considering whether upon the entirety of the evidence a defence was made out under s 28(a) or s 28(b) of the Act. However, Mr Wendler conceded that s 28(a) had no relevance but that s 28(b) may have relevance to the unusual circumstances of the case. 9 Mr Skinner of counsel, who appeared for the prosecutor, did not wish to be heard against the principle of law relied upon by Mr Wendler. 10 Although I have considered the statements made by their Honours in Pemble, given the approach of the parties, I do not propose to express any concluded view on the law as found in Pemble particularly as it involved a jury trial. However, I note more recently in Spies v The Queen (2001) CLR 603 at 617 the High Court (Gaudron, McHugh, Gummow and Hayne JJ) disapproved of the reasoning in Pemble. 11 Mr Wendler formally relied on the submissions that he had made during the hearing on 28 and 29 October 2004 as being equally applicable to the s 28 defence. The Section 28 Defence 12 In relation to s 28 defences, the defendant called no specific oral evidence dedicated to this subject. The defendant bears the onus in establishing a defence under s 28 but does so only on the civil onus. Nevertheless, that onus is substantial: Sydney County Council v Coulson (1987) 21 IR 477 at 480; Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 457. 13 I have already found that the defendant entered into a contract with Mr Clissold to investigate why a dam on his land was leaking and what remedial measures were required to stop the leak. This necessitated the digging of a trench. Prior to the work being completed Mr Clissold entered the trench on three occasions. On the last occasion, the trench collapsed killing Mr Clissold. 14 In oral submissions, counsel for the defendant asserted that the causal connection between the act or omission of the defendant was broken by a novus actus which was described as the wilful and deliberate disobedient act of the deceased in proceeding to enter the trench when he had been warned not to do so on a number of occasions. Counsel relied on the circumstances described by the defendant, particularly, the last occasion, when the deceased entered the trench without, in fact, the knowledge of the defendant. 15 As I understand the defence raised by the defendant, it is that Mr Clissold was a curious, officious, or intrusive bystander, who had been warned off. Mr Wendler submitted it was the wilful and deliberate disobedience of the deceased in proceeding into the trench, which resulted in the commission of the offence. It is this conduct, as I understand the defence, that gave rise to causes over which the defendant says he had no control and against the happening of which it was impracticable for the defendant to make provision. 16 This characterisation, in my view, gives rise to a false concept. The reality is that Mr Clissold was a person not following warnings or directions. In Maclean v Tedman & Anor (1984) 155 CLR 306, Mason, Wilson, Brennan, Dawson JJ, (Gibbs CJ not dissenting on this issue) said at 311 - 312: In such a situation it is not an acceptable answer to assert that an employer has no control over an employee's negligence or inadvertence. The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others. This was acknowledged even in the days when contributory negligence was a common law defence: (Wheare v. Clarke (1937) 56 CLR 715, at p 723; Henwood v. Municipal Tramways Trust (S.A.) (1938) 60 CLR 438, at p 444). The employer is not exempt from the application of this standard vis-a-vis his employees, whether his obligation to provide a safe system of work is one which is expressed as a requirement of ensuring that the system is as safe as reasonable care can make it or is expressed as one which requires him to take reasonable care in providing such a system. The employer's obligation in this respect cannot be restricted to the provision of a system which safeguards the employee from all foreseeable risks of injury except those which arise from his own inadvertence or negligence. There are many employment situations in which the risk of injury to the employee is negligible so long as the employee executes his work without inadvertence and takes reasonable care for his own safety. In these situations the possibility that the employee will act inadvertently or without taking reasonable care may give rise to a foreseeable risk of injury. In accordance with well settled principle the employer is bound to take care to avoid such a risk.

17 The obligation of any self employed person under the Act is to ensure that persons are not exposed to risks to their health or safety arising from the undertaking including those persons that ignore warnings, directions and/or are negligent. 18 In Riley v Australian Grader Hire Pty Ltd (2000) 103 IR 143, the Full Bench (Wright J President, Walton J Vice-President, Kavanagh J) stated at [15]: [15] ... The magistrate appears to have reached her conclusion as to the objective seriousness of the offence, having regard to the lack of common sense of the injured worker. It is reasonably clear from her decision that it was concluded that the conduct of the injured worker effectively removed or minimised the liability of the respondent in relation to the lack of training or instruction afforded the employee. This was wrong in principle. Section 15 of the Occupational Health and Safety Act [1983] requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing. We note the following observations of Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 at 257: Much of what was urged by Mr King was directed to showing that the worker who was killed knew of, and therefore ought to have avoided the exposed electrical connections. In one sense such a submission militated against the position of the defendant; the very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry. 19 Mr Stimson's evidence was that after he had been working on the trench for approximately half an hour, Mr Clissold walked into the trench. Mr Stimson stated that he told Mr Clissold to "get out of it, to stay out of it". Mrs Clissold's evidence was that Mr Clissold returned to the house during the afternoon before again returning to the site where he again entered the trench and was told by Mr Stimson to "go home and stay home and when I finish I will come and have a cup of coffee on the way home". It was shortly after this exchange that Mr Clissold again entered the trench. Mr Stimson's evidence after Mr Clissold had entered the trench on a second occasion, was "what could I do?". He went on to observe "if I had put an electric fence around the place he still would have got in if he had wanted to." 20 Mr Stimson was asserting that it was simply beyond his control to prevent Mr Clissold from walking into the trench. 21 I am not satisfied, on the evidence, that Mr Stimson could not have prevented Mr Clissold from entering the trench. As I have already found, the duty owed under the Act is to provide a risk free environment to all persons. In my view, the duty owed to employees is equally applicable to the duty self employed persons owe to others including the owner of the site, where an undertaking is being conducted. 22 In WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Ltd & Anor [2004] NSWIRComm 207, Walton J Vice-President stated at [134] - [136]: [134] ... If a risk is impossible to anticipate or is entirely speculative it will be very difficult to prove causation to the criminal standard. [135] The theoretical and authoritative bases for distinguishing "unduly remote" risks are somewhat unclear and may be examined by the Court at some later date. The distinction is difficult to reconcile with the forceful judicial pronouncements on the absolute, proactive nature of the duty extracted above, such as the Court's observation in Ferguson v Nelmac Pty Limited (1999) 92 IR 188 that the duty is not confined to taking precautions only where there are "warnings or signals of danger or when experience indicates that a risk to safety has arisen" and the observation of Hill J in Atco Controls Pty Limited that "employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace" (emphasis added). "Remote" risks must fall within the duty imposed by the Act (otherwise, it would be meaningless to extend risks beyond those which are reasonably foreseeable) and the question then centres upon whether the word "unduly" introduces a qualitative difference to justify exclusion from the broad duties imposed by ss15 and 16 of the Act or alternatively whether, as anticipated in the previous paragraph, the issue would be decided on a case-by-case basis by reference to causation.

[136] The authority cited in support of an exception to liability under ss15 and 16 of the Act for "unduly remote" risks is Kirkby v A & MI Hanson Pty Ltd , but the words do not appear in that judgment. The relevant passage is a summary of submissions made by counsel for the defendant, based on two High Court cases dealing with statutory culpable driving offences (at 49): Counsel for the defendant met the first element in issue, namely the risk to the health and safety of persons on the site, by the proposition that the "risk" had to be real or appreciable and not of a speculative kind": see McBride v The Queen (1966) 115 CLR 44 at 49-50 and Jiminiez v The Queen (1992) 173 CLR 572 at 579. 23 In my earlier judgment I stated at [79]: [79] In this case, in my view, it was not impossible to anticipate that having entered the trench on two occasions, Mr Clissold may do it again. Furthermore, the defendant was aware of the risk. He stated that after Mr Clissold entered on the first occasion "it (the trench) was getting damp and was just as likely to cave in". The defendant was required to ensure that Mr Clissold avoided the area of risk to his safety. This may have required him to cease work and erect a fence or barricade to prevent access to the trench. The defendant's evidence was that after about ten metres the trench was becoming damp and unsafe. He acknowledged that after Mr Clissold entered the trench all he did was to tell him to keep away. In my view the defendant should have taken further measures to ensure that Mr Clissold was protected from the risk. After Mr Clissold disobeyed the defendant on the first occasion, in my view, he was on notice that the deceased was prepared to ignore his direction. The defendant's obligation was to ensure the risk to safety of the undertaking did not impact on Mr Clissold. The defendant could have stopped work, erected a temporary fence at the entrance to the trench or back filled the entrance to the trench to prevent entry. 24 In my view, it was reasonably foreseeable that Mr Clissold may again attempt to enter the trench. Mr Stimson had directly envisaged the particular danger and was aware Mr Clissold had already entered the trench on two occasions. By way of example, if a situation arose at an electricity power station that persons were intent in entering the station and looking around the plant, the clear obligation imposed by the Act would be to stop them. 25 In my view the defendant had an obligation to prevent Mr Clissold entering the trench at all. 26 The Full Bench of the Commission recently reviewed the authorities that had discussed the requirements of s 53 (the predecessor to s 28) in WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd (2002) 123 IR 121. 27 The Full Bench stated at [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 WorkCover v Grice (at [68])): "To establish a defence under s 53, 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 County Council v Coulson (1987) 21 IR 477 at 480; and Italo Australia Construction Pty Ltd v Parkes (1988) 24 IR 428 at 431. So much was accepted by the defendant in this case. It is here that the question of reasonable foresight has relevance. If a defendant is able to demonstrate that the circumstances or causes of the detriment to safety constituting the offence were not reasonably foreseeable, it will generally have thereby established that it was not practicable to take measures to guard against that risk: see Jayne v National Coal Board [1963] 2 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 363 - 364. In WorkCover Authority (NSW) (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381, for example, Hill J commented in relation to s 53: 'If the happening of an event is not reasonably foreseeable it is not practicable to make provision against it. When considering the matter of foreseeability, one should be careful not to substitute reasonable hindsight for reasonable foresight.' 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." 28 Furthermore, in this matter the defendant failed to avert the risk of the trench collapsing when Mr Clissold walked into it. The risk to safety arose through the defendant's failure to carry out any adequate risk assessment and to comply with the WorkCover Authority of New South Wales Code of Practice ("the Code") in respect of excavation work and the 1997 Guide for Front-End Loader and Excavator Drivers ("the Guide"). The Guide provides that spoil must be placed at least one metre away from the excavation to prevent cave-ins and falls, with the toe of the pile no closer than 500 millimetres. The defendant agreed that the spoil was not placed in the way the Guide provided. I have already found that the placement of the spoil created a risk to health and safety. 29 Accordingly, in this case, the defendant must prove to the civil standard that it had no control and that it was impracticable to ensure the health, safety and welfare at the undertaking, of persons, in particular, Mr Clissold. 30 In relation to the undertaking, I do not consider that the defendant has discharged the onus of proving that it was impracticable to provide an adequate system of safety and that the offence was due to causes over which the defendant had no control. The Code and the Guide referred to above, outline that it is a legal requirement that where necessary, all trenches and excavations must be adequately shored or supported to prevent a fall or dislodgement of earth, rock or other material falling in or adjacent to, any excavation work from burying, trapping or striking a person that is in the excavation. 31 Paragraph 3.6 of the Code dated 31 March 2000 provides as follows: 3.6 Security of Excavations Many accidents on construction or demolition sites have involved people including young children sustaining serious injuries as a result of inadequate control measures being in place to prevent uncontrolled entry to the site. These injuries include falls into open excavations, injuries as a result of plant not being immobilised and people being struck by falling objects. Even shallow excavations can be trip and fall hazards. The OHS Act obligation to ensure a safe workplace extends to others present at the workplace or affected by the work, including contractors, visitors, delivery drivers, etc. A risk assessment should be conducted in order to determine which controls will be implemented to ensure the security of excavation both during work and when left unattended.

32 The Code goes on to state that control measures must be appropriate for the hazards and risks of the situation. Control measures such as the use of perimeter fencing, barricades or barriers, which are capable of preventing access or preventing the fall of a person should be considered. 33 It would have been a relatively simple matter to place safety fencing or barricades around the area of the trench and particularly at the entrance. Furthermore, the defendant, after Mr Clissold entered the trench on a second occasion, could have ceased work and declined to resume work until Mr Clissold had left the site. Had such steps been taken, I am satisfied that the risks to safety would have been averted. 34 There is nothing in terms of money, time and trouble that would have prevented these measures being implemented. 35 The danger of entering the trench was known to the defendant. The defendant did not have in place a system that addressed the risk or the requirements of s 9 that a self employed person "must ensure" the safety of Mr Clissold. 36 In relation to the defendant's submission that the offence was due to causes over which it had no control and against the happening of which it was impracticable to make provision, the Full Commission in Court Session stated in Sydney County Council v Coulson at 480: Nor does mere insistence that it "must have been" deliberate disobedience or inexplicable inadvertence when the opportunity to establish and explain the cause is not taken, an adequate explanation as to why in fact the employer had no control over the causes, or the happening of events such that it was impracticable for him to make provision. 37 In my view, on a proper consideration of the evidence, there is no question that the defendant had the requisite control over the work site and, therefore, s 28(b) does not arise. 38 The defendant has failed to discharge the onus upon him in relation to any s 28 defence. 39 For the above reasons, I find the defendant guilty of the charge. 40 The matter is listed for hearing at 10.00 am on 25 August 2005 to hear submissions on penalty.

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