Addinsall & Ors v Bell [2016] ICQ 2

INDUSTRIAL COURT OF QUEENSLAND CITATION: Addinsall & Ors v Bell [2016] ICQ 002 PARTIES: FILE NO: PARTIES: FILE NO: PARTIES: FILE NO: PARTIES: FILE NO: TONY JOHN ADDINSALL (appellant) v STEWART LYNN BELL (respondent) C/2015/10 EDWARD COLEMAN (appellant) v STEWART LYNN BELL (respondent) C/2015/11 WILLIAM JAMES MCDONALD (appellant) v STEWART LYNN BELL (respondent) C/2015/12 MCG QUARRIES PTY LTD (appellant) v STEWART LYNN BELL (respondent) C/2015/13 PROCEEDING: Appeal DELIVERED ON: 19 February 2016 HEARING DATE: 9 June 2015 MEMBER: Martin J, President ORDER/S: In matter C/2015/10, the appeal is dismissed. In matter C/2015/11, the appeal is dismissed. In matter C/2015/12, the appeal is dismissed. In matter C/2015/13, the appeal is dismissed. CATCHWORDS: MAGISTRATES – COMMENCEMENT OF PROCEEDINGS – DUPLICITY, AMBIGUITY AND UNCERTAINTY – GENERALLY – where the respondent made complaints about each of the appellants – where the Industrial Magistrate dismissed the appellants’ application to -- 1 of 23 -- 2 have the complaints struck out or stayed – where the appellants appeal that decision – where the respondent filed a notice of contention in respect of each of the appeals – whether the charges referred to irrelevant regulations and by so doing failed to disclose offences known to law – whether the charges proceeded on the basis that a breach of the Mining and Quarrying Safety and Health Regulation 2001 amounted to a breach of the Mining and Quarrying Safety and Health Act 1999 such that they were insufficiently precise or resulted in duplicity Acts Interpretation Act 1954 Mining and Quarrying Safety and Health Act 1999 ss 6, 7 ,19(1), 20, 31, 32, 34 ,35 , 36, 39, 234 Mining and Quarrying Safety and Health Regulation 2001 s 4, 100 CASES: Clarke v La Franchi Supreme Court of Victoria, Appeal Division, unreported, 10 June 1994 Diemould Tooling Services Pty Ltd v Oaten [2008] SASC 197 Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 NK Collins Industries Pty Ltd v President of the Industrial Court [2014] 2 Qd R 304 St Clair v Timtalla Pty Ltd & Anor (No 2) [2010] QSC 480 APPEARANCES: E S Wilson QC with A Scott instructed by Mills Oakley for the appellants P J Davis QC with T Ryan instructed by McInnes Wilson for the respondent [1] On 5 June 2012 Sean Scovell was working in the crushing plant at Moranbah South Quarry. While performing maintenance work on the plant, Mr Scovell was seriously injured and, as a result of those injuries, died. [2] On 3 June 2013 Stewart Bell made four complaints under the Mining and Quarrying Safety and Health Act 1999 (the Act). In each complaint he alleged that there had been contraventions of the Act by the respondents (the appellants in these appeals) which had caused Mr Scovell’s death. [3] The persons charged were: (a) MCG Quarries Pty Ltd (MCG) – the operator of the quarry; (b) William McDonald – the executive officer of MCG; (c) Tony Addinsall – the Site Senior Executive (SSE) on 5 June 2012; and -- 2 of 23 -- 3 (d) Edward Coleman – the SSE between 17 October 2010 and 14 February 2012. [4] Each of the persons charged applied to an Industrial Magistrate to have some of the charges either struck out or stayed. In a concise set of reasons the Industrial Magistrate accepted the arguments advanced by Mr Bell (the respondent in this appeal) and dismissed the applications. Four appeals have been brought against the Industrial Magistrate’s decision. Mr Bell has also filed a Notice of Contention in each appeal. The arguments which were presented to the Industrial Magistrate have been repeated in this appeal. [5] The parties proceeded on the basis that the decision in one appeal would, apart from an additional argument in the appeal by Mr Coleman, determine the outcome in the other appeals. I have, therefore, decided the issues in one appeal and applied that to the other appeals. TONY JOHN ADDINSALL v STEWART LYNN BELL The legislation [6] The complaints assert contraventions of the Act. In order to understand the arguments it is necessary to set out some parts of the Act.1 [7] Section 6 provides that: “The objects of this Act are— … (b) to require that the risk of injury or illness to any person resulting from operations is at an acceptable level.” [8] Section 7 provides: “The objects of this Act are to be achieved by— (a) imposing safety and health obligations on persons who operate mines or who may affect the safety or health of others at mines; and … (c) making regulations and guidelines for the mining industry to require and promote risk management and control; …” [9] Section 19(1) defines a “risk” as “the risk of injury or illness to a person arising out of a hazard” and section 20 defines “hazard” as “a thing or a situation with potential to cause injury or illness to a person.” 1 The relevant legislation is the Act which was current at 1 January 2012. -- 3 of 23 -- 4 [10] Section 31 provides: “A person on whom a safety and health obligation is imposed must discharge the obligation.” [11] Under section 32 a “person on whom a safety and health obligation is imposed may be subject to more than 1 safety and health obligation.” [12] The discharge of the obligations under the Act is dealt with in the following sections: “34 How obligation can be discharged if regulation or guideline made (1) If a regulation prescribes a way of achieving an acceptable level of risk, a person may discharge the person’s safety and health obligation in relation to the risk only by following the prescribed way. (2) If a regulation prohibits exposure to a risk, a person may discharge the person’s safety and health obligation in relation to the risk only by ensuring that the prohibition is not contravened. (3) Subject to subsections (1) and (2), if a guideline states a way or ways of achieving an acceptable level of risk, a person discharges the person’s safety and health obligation in relation to the risk only by— (a) adopting and following a stated way; or (b) adopting and following another way that achieves a level of risk that is equal to or better than the acceptable level. 35 How obligations can be discharged if no regulation or guideline made (1) This section applies if there is no regulation or guideline prescribing or stating a way to discharge the person’s safety and health obligation in relation to a risk. (2) The person may choose an appropriate way to discharge the person’s safety and health obligation in relation to the risk. (3) However, the person discharges the person’s safety and health obligation in relation to the risk only if the person takes reasonable precautions, and exercises proper diligence, to ensure the obligation is discharged.” [13] Relevant obligations are provided for in the following sections. “36 Obligations of persons generally -- 4 of 23 -- 5 (1) A worker or other person at a mine or a person who may affect safety and health of persons at a mine or as a result of operations, has the following obligations— (a) to comply with this Act, standard work instructions, and procedures applying to the worker or person that form part of a safety and health management system for the mine; (b) if the worker or other person has information that other persons need to know to fulfil their obligations or duties under this Act, or to protect themselves from the risk of injury or illness—to give the information to the other persons; (c) to take any other reasonable and necessary course of action to ensure that persons are not exposed to unacceptable levels of risk. (2) A worker or other person at a mine has the following additional obligations at the mine— (a) to manage the risk of injury or illness to himself or herself or any other person in the worker’s or other person’s own work and activities, so that the risk is at an acceptable level; (b) to ensure, to the extent of the responsibilities and duties allocated to the worker or other person, that the risk of injury or illness to any person is managed in the work and activities under the worker’s or other person’s control, supervision, or leadership, so that the risk is at an acceptable level; (c) to the extent of the worker’s or other person’s involvement, to participate in and conform to the risk management practices of the operations; (d) to comply with instructions given for safety and health of persons by the mine operator or site senior executive for the mine or a supervisor at the mine; (e) to work at the mine only if the worker or other person is in a fit condition to carry out the work without affecting the safety and health of others; (f) not to do anything wilfully or recklessly that might adversely affect the safety and health of someone else at the mine. … 39 Obligations of site senior executive for mine -- 5 of 23 -- 6 (1) A site senior executive for a mine has the following obligations in relation to the safety and health of persons who may be affected by operations— (a) to ensure the risk to persons from operations is at an acceptable level; (b) to ensure the risk to persons from any plant or substance provided by the site senior executive for the performance of work by someone other than the site senior executive’s workers is at an acceptable level; (c) to develop and implement a single safety and health management system for all persons at the mine; (d) to develop, implement and maintain a management structure for the mine that helps ensure the safety and health of persons at the mine; (e) to train workers so that they are competent to perform their duties; (f) to provide for— (i) adequate planning, organisation, leadership and control of operations; and (ii) the carrying out of critical work at the mine that requires particular technical competencies; and (iii) adequate supervision and control of operations on each shift at the mine; and (iv) regular monitoring and assessment of the working environment, work procedures, equipment, and installations at the mine; and (v) appropriate inspection of each workplace at the mine including, where necessary, pre-shift inspections. (2) Subsection (1)(c) does not apply to a site senior executive of a mine that is an opal or gem mine, if no more than 10 workers are employed at the mine. (3) However, a regulation may specify an opal or gem mine mentioned in subsection (2) to be a mine to which subsection (1)(c) applies because of the size, nature or complexity of the mine’s operations.” [14] Section 234 deals with proceedings for offences: -- 6 of 23 -- 7 “234 Proceedings for offences (1) A prosecution for an offence against this Act is by way of summary proceedings before an industrial magistrate. (2) More than 1 contravention of a safety and health obligation under section 31 may be charged as a single charge if the acts or omissions giving rise to the claimed contravention happened within the same period and in relation to the same mine. …” [15] The Mining and Quarrying Safety and Health Regulation 2001 (the Regulation) is also relevant. Section 4 of the Regulation provides: “(1) This chapter, other than sections 60B(1), 60C(2), 87(5), 120(1) and (2), 131(6) and 138(3), prescribes ways of achieving an acceptable level of risk at a mine in the circumstances mentioned in the chapter. (2) However, this chapter does not deal with all circumstances that expose someone to risk at a mine. (3) A person may discharge the person’s safety and health obligation in the circumstances mentioned in this chapter only by following the prescribed ways. Editor’s Note— See section 31 (Discharge of obligations) of the Act for the penalty for failing to discharge the obligation.” The complaint [16] In order to understand the arguments of the parties it is necessary that the terms of the complaint be set out: “THE COMPLAINT OF STEWART LYNN BELL of 61 Mary Street, Brisbane in the State of Queensland, a public officer within the meaning of section 142A of the Justices Act 1886 and the Commissioner within the meaning of section 234(5) of the Mining and Quarrying Safety and Health Act 1999 made this 3rd day of June, 2013 before the undersigned, a Justice of the Peace for the said State, who says that: CHARGE 1: On 5 June 2012 near Moranbah, in the Magistrates Court District of Clermont in the State of Queensland, TONY JOHN ADINSALL [sic], a person on whom a safety and health obligation was imposed by section 39(1)(a) of the Mining and Quarrying Safety and Health Act 1999 did fail to discharge the said obligation, in contravention of section 31 of the said Act, AND the said contravention of the said Act caused the death of Sean Raymond Scovell. -- 7 of 23 -- 8 Particulars 1. The Moranbah South Quarry was a “Quarry” within the meaning of that term in s 11 of the said Act. 2. The Quarry was situated approximately 15 kilometres from Moranbah (“the Quarry site”). 3. “Operations” as defined in the said Act were carried on at the Quarry site at all material times. 4. On 15 February 2012, TONY ADDINSALL was appointed “Site Senior Executive” (SSE) at the Quarry for the purposes of the said Act, and was the SSE within the meaning of that term in s 22 of the said Act from that date until and including 5 June 2012. 5. As SSE of the Quarry, TONY ADDINSALL had specific safety and health obligations under s 39 of the said Act in relation to the safety and health of persons who were affected by the operations. 6. As at 5 June 2012 a fixed crushing plant (“the plant”) was being operated at the Quarry site and was being used in the operations of the Quarry. 7. At or about 7:00 pm on 5 June 2012, Sean Raymond Scovell was working as the operator of the plant and in that capacity was a person whose safety and health was affected by operations. 8. Mr Scovell left the designated control room for the operation of the plant whilst a conveyor or conveyors of the plant were in operation. 9. Mr Scovell proceeded up the walkway of Conveyor No 2 of the plant carrying a grease gun for the purpose of performing maintenance on the plant. 10. Mr Scovell then positioned himself close to the conveyor near the first change of direction pulley bearing housing and was caught in the operating conveyor system. 11. As a consequence of being caught in the operating conveyor system, Mr Scovell suffered fatal injuries. 12. TONY ADDINSALL as SSE for the Quarry failed to ensure as required under s 39(1)(a) of the said Act that the risk to persons from operations was at an acceptable level because: i. He was a person who had an obligation to manage risk at the Quarry and he did not as far as reasonably practicable ensure that hazard controls, namely engineering controls in the form of guards on the conveyor system at the first -- 8 of 23 -- 9 change of direction pulley, were in place as required by s 8(1) of the Mining and Quarrying Safety and Health Regulation 2001 (“the Regulation”); and/or ii. As SSE, he failed to ensure that Mr Scovell was given appropriate induction, training and periodical assessment to ensure Mr Scovell had adequate knowledge of the Quarry site procedures and practices as required by s 91 of the Regulation; and/or iii. As SSE, he failed to ensure Mr Scovell was trained and appropriately assessed to ensure that he had adequate skill to operate the plant as required under s 93(1) of the Regulation; and/or iv. As SSE, he failed to ensure Mr Scovell was given the supervision and assistance from other competent persons necessary to achieve an acceptable level of risk as required under s 95(2) of the Regulation; and/or v. As a person who had an obligation under the Act to manage risk at the Quarry in relation to the operation of the plant, he failed to ensure that the plant was not operated in a way that created an unacceptable level of risk as required under s 106 of the Regulation; and/or vi. He failed to ensure that the Quarry had written specifications for the plant and instructions for its use available to workers operating the said plant which identified the hazard of conducting maintenance on the plant once it was operating as required by s 112(1), (2) and (3) of the Regulation; and/or vii. It being necessary to manage the risk, having regard to the nature and level of that risk, that hazard warnings and instructions for use were displayed near the plant which warned workers not to conduct maintenance on the plant whilst it was in operation, he failed to ensure such warnings and instructions for use were so displayed as required under s 112(4) of the Regulation; and/or viii. He failed to ensure that the Quarry had a written procedure or standard work instruction for carrying out maintenance involving the said plant as required under s 114(2) of the Regulation; and/or ix. He failed to ensure that persons working as operators of the plant, including Mr Scovell, were aware of the written procedures and/or standard work instructions for the carrying out of maintenance on the plant as required under s 115 of the Regulation and that copies of such documents were available to operators; and/or x. He failed to ensure there was a written procedure for maintenance at the plant which met the requirements of s 116 of the Regulation; and/or xi. He failed to ensure that there was a standard work instruction for maintenance of the plant meeting the requirements under s 117 of the Regulation. -- 9 of 23 -- 10 CHARGE 2: On 5 June 2012 near Moranbah, in the Magistrates Court District of Clermont in the State of Queensland, TONY JOHN ADDINSALL, a person on whom a safety and health obligation was imposed by section 39(1)(e) of the Mining and Quarrying Safety and Health Act 1999 did fail to discharge the said obligation, in contravention of section 31 of the said Act, AND the said contravention of the said Act caused the death of Sean Raymond Scovell. Particulars 1. The Moranbah South Quarry was a “Quarry” within the meaning of that term in s 11 of the said Act. 2. The Quarry was situated approximately 15 kilometres from Moranbah (“the Quarry site”). 3. “Operations” as defined in the said Act were carried on at the Quarry site at all material times. 4. On 15 February 2012, TONY ADDINSALL was appointed “Site Senior Executive” (SSE) at the Quarry for the purposes of the said Act, and was the SSE within the meaning of that term in s 22 of the said Act from that date until and including 5 June 2012. 5. As SSE of the Quarry, TONY ADDINSALL had specific safety and health obligations under s 39 of the said Act in relation to the safety and health of persons who were affected by the operations. 6. As at 5 June 2012 a fixed crushing plant (“the plant”) was being operated at the Quarry site and was being used in the operations of the Quarry. 7. At or about 7:00 pm on 5 June 2012, Sean Raymond Scovell was working as the operator of the plant and in that capacity was a person whose safety and health was affected by operations. 8. Mr Scovell left the designated control room for the operation of the plant whilst a conveyor or conveyors of the plant were in operation. 9. Mr Scovell proceeded up the walkway of Conveyor No 2 of the plant carrying a grease gun for the purpose of performing maintenance on the plant. 10. Mr Scovell then positioned himself close to the conveyor near the first change of direction pulley bearing housing and was caught in the operating conveyor system. -- 10 of 23 -- 11 11. As a consequence of being caught in the operating conveyor system, Mr Scovell suffered fatal injuries. 12. TONY ADDINSALL as SSE for the Quarry failed to train Sean Raymond Scovell so that he was competent to perform his duties as operator of the plant as required under s 39(1)(e) of the said Act, because he failed to ensure Mr Scovell was adequately trained and assessed so that Mr Scovell had adequate knowledge to safely operate the plant as required under s 93(1) of the Mining and Quarrying Safety and Health Regulation 2001. CHARGE 3: On 5 June 2012 near Moranbah, in the Magistrates Court District of Clermont in the State of Queensland, TONY JOHN ADDINSALL, a person on whom a safety and health obligation was imposed by section 39(1)(f)(iii) of the Mining and Quarrying Safety and Health Act 1999 did fail to discharge the said obligation, in contravention of section 31 of the said Act, AND the said contravention of the said Act caused the death of Sean Raymond Scovell. Particulars 1. The Moranbah South Quarry was a “Quarry” within the meaning of that term in s 11 of the said Act. 2. The Quarry was situated approximately 15 kilometres from Moranbah (“the Quarry site”). 3. “Operations” as defined in the said Act were carried on at the Quarry site at all material times. 4. On 15 February 2012, TONY ADDINSALL was appointed “Site Senior Executive” (SSE) at the Quarry for the purposes of the said Act, and was the SSE within the meaning of that term in s 22 of the said Act from that date until and including 5 June 2012. 5. As SSE of the Quarry, TONY ADDINSALL had specific safety and health obligations under s 39 of the said Act in relation to the safety and health of persons who were affected by the operations. 6. As at 5 June 2012 a fixed crushing plant (“the plant”) was being operated at the Quarry site and was being used in the operations of the Quarry. 7. At or about 7:00 pm on 5 June 2012, Sean Raymond Scovell was working as the operator of the plant and in that capacity was a person whose safety and health was affected by operations. -- 11 of 23 -- 12 8. Mr Scovell left the designated control room for the operation of the plant whilst a conveyor or conveyors of the plant were in operation. 9. Mr Scovell proceeded up the walkway of Conveyor No 2 of the plant carrying a grease gun for the purpose of performing maintenance on the plant. 10. Mr Scovell then positioned himself close to the conveyor near the first change of direction pulley bearing housing and was caught in the operating conveyor system. 11. As a consequence of being caught in the operating conveyor system, Mr Scovell suffered fatal injuries. 12. TONY ADDINSALL as SSE for the Quarry failed to train Sean Raymond Scovell so that he was competent to perform his duties as operator of the plant as required under s 39(1)(f)(iii) of the said Act, because he failed to ensure Mr Scovell was adequately trained and assessed so that Mr Scovell had adequate knowledge to safely operate the plant as required under s 95(2) of the Mining and Quarrying Safety and Health Regulation 2001. CHARGE 4: On 5 June 2012 near Moranbah, in the Magistrates Court District of Clermont in the State of Queensland, TONY JOHN ADDINSALL, a person on whom a safety and health obligation was imposed by section 39(1)(f)(iv) of the Mining and Quarrying Safety and Health Act 1999 did fail to discharge the said obligation, in contravention of section 31 of the said Act, AND the said contravention of the said Act caused the death of Sean Raymond Scovell Particulars 1. The Moranbah South Quarry was a “Quarry” within the meaning of that term in s 11 of the said Act. 2. The Quarry was situated approximately 15 kilometres from Moranbah (“the Quarry site”). 3. “Operations” as defined in the said Act were carried on at the Quarry site at all material times. 4. On 15 February 2012, TONY ADDINSALL was appointed “Site Senior Executive” (SSE) at the Quarry for the purposes of the said Act, and was the SSE within the meaning of that term in s 22 of the said Act from that date until and including 5 June 2012. -- 12 of 23 -- 13 5. As SSE of the Quarry, TONY ADDINSALL had specific safety and health obligations under s 39 of the said Act in relation to the safety and health of persons who were affected by the operations. 6. As at 5 June 2012 a fixed crushing plant (“the plant”) was being operated at the Quarry site and was being used in the operations of the Quarry. 7. At or about 7:00 pm on 5 June 2012, Sean Raymond Scovell was working as the operator of the plant and in that capacity was a person whose safety and health was affected by operations. 8. Mr Scovell left the designated control room for the operation of the plant whilst a conveyor or conveyors of the plant were in operation. 9. Mr Scovell proceeded up the walkway of Conveyor No 2 of the plant carrying a grease gun for the purpose of performing maintenance on the plant. 10. Mr Scovell then positioned himself close to the conveyor near the first change of direction pulley bearing housing and was caught in the operating conveyor system. 11. As a consequence of being caught in the operating conveyor system, Mr Scovell suffered fatal injuries. 12. TONY ADDINSALL as SSE for the Quarry failed to train Sean Raymond Scovell so that he was competent to perform his duties as operator of the plant as required under s 39(1)(f)(iv) of the said Act, because he failed to ensure Mr Scovell was adequately trained and assessed so that Mr Scovell had adequate knowledge to safely operate the plant as required under s 8(1) of the Mining and Quarrying Safety and Health Regulation 2001. CHARGE 5: On 5 June 2012 near Moranbah, in the Magistrates Court District of Clermont m the State of Queensland, TONY JOHN ADDINSALL, a person on whom a safety and health obligation was imposed by section 36(1)(a) of the Mining and Quarrying Safety and Health Act 1999 did fail to discharge the said obligation, in contravention of section 31 of the said Act, AND the said contravention of the said Act caused the death of Sean Raymond Scovell. Particulars 1. The Moranbah South Quarry was a “Quarry” within the meaning of that term in s 11 of the said Act. -- 13 of 23 -- 14 2. The Quarry was situated approximately 15 kilometres from Moranbah (“the Quarry site”). 3. “Operations” as defined in the said Act were carried on at the Quarry site at all material times. 4. On 15 February 2012, TONY ADDINSALL was appointed “Site Senior Executive” (SSE) at the Quarry for the purposes of the said Act, and was the SSE within the meaning of that term in s 22 of the said Act from that date until and including 5 June 2012. 5. As SSE of the Quarry, TONY ADDINSALL had specific safety and health obligations under s 39 of the said Act in relation to the safety and health of persons who were affected by the operations. 6. As at 5 June 2012 a fixed crushing plant (“the plant”) was being operated at the Quarry site and was being used in the operations of the Quarry. 7. At or about 7:00 pm on 5 June 2012, Sean Raymond Scovell was working as the operator of the plant and in that capacity was a person whose safety and health was affected by operations. 8. Mr Scovell left the designated control room for the operation of the plant whilst a conveyor or conveyors of the plant were in operation. 9. Mr Scovell proceeded up the walkway of Conveyor No 2 of the plant carrying a grease gun for the purpose of performing maintenance on the plant. 10. Mr Scovell then positioned himself close to the conveyor near the first change of direction pulley bearing housing and was caught in the operating conveyor system. 11. As a consequence of being caught in the operating conveyor system, Mr Scovell suffered fatal injuries. 12. TONY ADDINSALL as a person who affected safety and health of persons at the Quarry, failed to comply with his obligation under s 36(1)(a) of the said Act because he did not ensure as required under Item 28 of the safety and health management system of the Quarry that the plant complied with the relevant Australian Standard, namely Australian Standard AS 1755 – 2000 Conveyors/Safety so that guarding was fitted to the conveyor structure at the first change of direction pulley point. CHARGE 6: On 5 June 2012 near Moranbah, in the Magistrates Court District of Clermont in the State of Queensland, TONY JOHN ADDINSALL, a person on whom a safety and health obligation was imposed by section 36(1)(c) of the Mining and Quarrying Safety and -- 14 of 23 -- 15 Health Act 1999 did fail to discharge the said obligation, in contravention of section 31 of the said Act, AND the said contravention of the said Act caused the death of Sean Raymond Scovell. Particulars 1. The Moranbah South Quarry was a “Quarry” within the meaning of that term in s 11 of the said Act. 2. The Quarry was situated approximately 15 kilometres from Moranbah (“the Quarry site”). 3. “Operations” as defined in the said Act were carried on at the Quarry site at all material times. 4. On 15 February 2012, TONY ADDINSALL was appointed “Site Senior Executive” (SSE) at the Quarry for the purposes of the said Act, and was the SSE within the meaning of that term in s 22 of the said Act from that date until and including 5 June 2012. 5. As SSE of the Quarry, TONY ADDINSALL had specific safety and health obligations under s 39 of the said Act in relation to the safety and health of persons who were affected by the operations. 6. As at 5 June 2012 a fixed crushing plant (“the plant”) was being operated at the Quarry site and was being used in the operations of the Quarry. 7. At or about 7:00 pm on 5 June 2012, Sean Raymond Scovell was working as the operator of the plant and in that capacity was a person whose safety and health was affected by operations. 8. Mr Scovell left the designated control room for the operation of the plant whilst a conveyor or conveyors of the plant were in operation. 9. Mr Scovell proceeded up the walkway of Conveyor No 2 of the plant carrying a grease gun for the purpose of performing maintenance on the plant. 10. Mr Scovell then positioned himself close to the conveyor near the first change of direction pulley bearing housing and was caught in the operating conveyor system. 11. As a consequence of being caught in the operating conveyor system, Mr Scovell suffered fatal injuries. 12. TONY ADDINSALL, as a person who affected safety and health of persons at the Quarry, failed to comply with his obligation under s 36(1)(c) by not taking other -- 15 of 23 -- 16 reasonable and necessary courses of action to ensure that Mr Scovell was not exposed to unacceptable risk because: i. As a person who had an obligation to manage risk at the Quarry, he did not as far as reasonably practicable ensure that hazard controls, namely engineering controls in the form of guarding on the conveyor structure were placed at the site of the first change of direction pulley as required under s 8(1) of the Mining and Quarrying Safety and Health Regulation 2001 (“the Regulation”); and/or ii. As a person who had an obligation under the said Act to manage risk at the Quarry in relation to the operation of the said plant, he failed to ensure that the plant was not operated in a way that created that an unacceptable level of risk as required under s 106 of the Regulation.” The notice of appeal [17] The notice of appeal seeks orders that the Magistrate’s decision be set aside and that charges 1, 2, 3, 4 and 6 be struck out or, alternatively, that charges 1 and 6 be stayed. [18] There are two issues which arise in the appeal and they have been referred to by both parties as the “irrelevant regulations issue” and the “unintelligibility of the charges issue”. I will deal with this matter using the same classifications. Irrelevant regulations issue [19] The basis of the appellant’s argument is that the Magistrates Court does not have jurisdiction to hear and determine Charges 1, 2, 3, 4, and 6 because none of those charges disclose an offence known to the law. They failed to disclose an offence, it is argued, because the charges allege an offence but plead matters relevant to a different offence. [20] In this matter, the charges (like the charges in the other appeals) alleged that the appellant contravened s 31 of the Act by failing to discharge certain specified safety and health obligations and alleged that those contraventions arose out of contraventions of certain provisions of the Regulation. It is argued that it is not a requirement of the safety and health obligations referred to in the charges that the appellant must comply with the specified provisions of the Regulation. In other words, the appellant does not breach those obligations simply by breaching those regulations. [21] The appellant contends that there is only one safety and health obligation which requires compliance with the Regulation, namely, s 36(1)(a) of the Act. That section imposes an obligation to comply with the Act and the reference to the “Act” includes the Regulation. [22] This argument turns upon the construction of ss 34 and 35 of the Act. It is argued that an element of a safety and health obligation may be that the obligation-holder is required to take action prescribed by regulation. But that will only be so if two matters are satisfied: -- 16 of 23 -- 17 i. the relevant obligation is an obligation “in relation to a risk”; and ii. the relevant regulation “prescribes a way of achieving an acceptable level of risk… in relation to the risk.”2 [23] The appellant relies upon Kirk v Industrial Court (NSW)3 and NK Collins Industries Pty Ltd v President of the Industrial Court of Queensland4 for the proposition that the obligation “in relation to a risk” is an obligation “to take particular measures to prevent an identifiable risk eventuating.” [24] This, it is argued, is supported by the definition of “risk” in the Act. Risk is defined as a “risk of injury or illness to a person arising out of a hazard”.5 Hazard is defined as a “thing or a situation with potential to cause injury or illness to a person”.6 The appellant draws two things from this: i. Some of the safety and health obligations prescribed in the Act are directed specifically to risk, while others do not mention risk at all. Thus, there are obligations that are breached by a failure to act in accordance with their terms, rather than by a failure to comply with the regulations. ii. Where no method of achieving an acceptable level of a particular risk is prescribed, then s 35 of the Act is engaged. An obligation holder may choose what measure they wish to take in respect of the risk and the regulations are irrelevant. [25] On that reasoning, the appellant argues that none of the regulations relied on in the specific charges purport to prescribe ways of achieving an acceptable level of risk. They are simply generic and set out general requirements. As such, they are irrelevant to the obligations pleaded. [26] With respect to each of the charges the subject of the appeal, the appellant made the following submissions: 1. Charge 1. This charge alleges the obligation in s 39(1)(a) of the Act was breached by failures to take measures required under a number of identified regulations. It is argued that a failure to follow each or any of those provisions will only breach the obligation in s 39(1)(a) if those provisions prescribe “the way of rendering acceptable the risk the subject of the charge.” In the complaint which was served on the appellant, no identifiable risk was particularised. It was, though, set out in some further and better particulars and identified as: 2 Mining and Quarrying Safety and Health Act 1999 s 34(1) 3 (2010) 239 CLR 531 at [14]. 4 [2014] 2 Qd R 304 at [58]. 5 Mining and Quarrying Safety and Health Act 1999 s 19. 6 Mining and Quarrying Safety and Health Act 1999 s 20. -- 17 of 23 -- 18 “… The risk of death or injury to a worker while at the quarry; in particular, injury sustained through contact with the working parts of the mechanism of the plant.” The appellant says that as none of the regulations prescribe any measure to address the risk identified by the prosecution, then they do not identify the specific measures that must be employed. They specify in general terms only and not with respect to any specific risk. 2. Charges 2, 3, 4 and 6 are subject to the same submission. [27] This argument was advanced before the Industrial Magistrate. In rejecting the argument, the Industrial Magistrate relied upon s 4 of the Regulation. That section provides that, Chapter 2 of the Regulation, excluding certain sections, “prescribes ways of achieving an acceptable level of risk at a mine in the circumstances mentioned in the chapter.” The appellant contends that the Industrial Magistrate erred in relying on this provision because, it was argued, the content of safety and health obligations provided by the Act is to be determined by the proper construction of the Act and not the Regulation. The appellant argues that the question is not whether a regulation “prescribes ways of achieving an acceptable level of risk” but whether it “prescribes a way of achieving an acceptable level of risk … in relation to the risk” the subject of the charge. [28] The Industrial Magistrate was correct to rely upon s 4 of the Regulation to assist in the construction of the succeeding sections in Chapter 2 of the Regulation. The terms of s 4 of the Regulation are consistent with the reference to obligation in ss 34 and 35 of the Act. The argument for the appellant appears to be that, unless there is an identification of the same risk referred to in a charge, then the Regulation does not assist. That cannot be correct. These regulations are designed to provide a delineation of the means by which an obligation holder can satisfy the requirements of the Act. It would be impossible for a set of regulations to be drafted on the basis that there was a need to identify all possible risks and then to identify the means by which each of those identified risks might be dealt with. [29] Section 34 of the Act provides that, if a regulation prescribes a way of achieving an acceptable level of risk, a person may discharge the person’s safety and health obligation in relation to the risk only by following the prescribed way. For example, in Charge 1 the complainant relies upon s 8(1) of the Regulation. That section does identify a prescribed way of reducing risk by specifically prescribing measures to address the risk. In this case, the hazard posed by the absence of a guard on the conveyor constituted the risk. [30] The construction of the particular sections in the Regulation commences with the heading of Chapter 2 of the Regulation, that is, “Ways of achieving an acceptable level of risk”. A heading to a chapter is part of the Act.7 As such, it may be called in aid when interpreting an Act or Regulation. 7 Acts Interpretation Act 1954 s 14(1). -- 18 of 23 -- 19 [31] In order for a regulation to be relevant in the sense that a breach of it could support a charge, a complainant will need to demonstrate the relevance of the breach to the risk referred to in the charge. It is not necessary, and it would not be possible, for there to be a distinct regulation which deals with every possible permutation or combination of risk which might arise in a mine. [32] Further, the means by which a complaint is, in general, to be set out has been considered in a number of authorities including Kirk v Industrial Court (NSW) where, at [14], it was said: “A statement of offence must identify the act or omission said to constitute a contravention … It may be expected that in many instances the specification of the measure which should have been or should be taken will itself identify the risk which is being addressed.” [33] Similarly, in NK Collins Industries it was said that the relevant breach is the measure not taken – the act or omission of the employer. [34] Each of the provisions of the Regulation relied upon by the respondent can be shown to relate to the specific risk. While it is inevitable that regulations will be constructed in such a way that they may apply to the risks sought to be addressed, it is possible to find in s 100(1)(b)(iii) of the Regulation the specific reference to a matter which relates to the facts of this case where, in that Regulation, there is an obligation to ensure that (if it is necessary and reasonably practical) the plant incorporate appropriate engineering controls and the example of “guards on moving parts” is provided. [35] The appellant has not demonstrated that the Industrial Magistrate fell into error in construing the Act or the Regulation in their application to the complaint. Unintelligibility of the charges issue [36] The complaint by the appellant under this argument is that the charges globally allege contravention of safety and health obligations and leave open multiple possible formulations of the number and identity of contraventions charged. The specific complaint relates to the use of the conjunction “and/or”. The appellant appears to argue that the Industrial Magistrate erred by proceeding on the assumption that each breach of each regulation, as identified in the particulars, was a separate offence. While the Industrial Magistrate did not go into great detail (this is no criticism of the Industrial Magistrate), it is clear that his Honour relied upon reasoning that the defendant’s entitlement to have the complaint identified with precision was satisfied by the manner in which the complaint and the individual charges were set out. [37] The use of the term “and/or” is not to be commended. I have, in another decision, already made some comment about this term which I repeat here: 8 “[11] The pleading is replete with the device ‘and/or’ which was accurately described by Viscount Simon LC in Bonitto v Fuerst Bros & Co Ltd 8 St Clair v Timtalla Pty Ltd & Anor (No 2) [2010] QSC 480 at 5-7. -- 19 of 23 -- 20 [1944] AC 75 at 82 as the ‘Bastard conjunction’ which was the ‘Commercial Court’s contribution to basic English’. The term has generally been regarded as unacceptable in commercial documents and more so in pleadings. In Re Moage Limited (1998) 153 ALR 711, Burchett J said (at 716-717): ‘Although Lord Reid declared in John G. Stein & Co Ltd v O’Hanlon [1965] AC 890 at 904 that ‘[t]he symbol “and/or” is not yet part of the English language’, it has long been recognized as a loose expression conveying a vague meaning. An early version of it is to be found in Cuthbert v Cumming (1855) 24 LJ Ex 198, where Alderson B said (at 199) ‘the contract on the face of the charter-party was, that the parties were to ‘load a full and complete cargo of sugar, molasses, and/or other lawful produce,’ so that, according to the contract, the parties were either to load a full and complete cargo of sugar and molasses, and other lawful produce, or a full cargo of sugar and molasses, or a full cargo of other lawful produce, leaving it open in every way by reason of the words ‘and’ and ‘or’ being introduced into the charter-party’. Similarly, in Furness v Charles Tennant, Sons, & Co (1892) 8 TLR 336, Lord Herschell construed a charter-party requiring the loading of ‘a full and complete cargo of sugar in hogsheads and (or) bags, or other lawful merchandise’ as entitling the charterers ‘to discharge their obligation by loading a cargo of sugar either in hogsheads or in bags, or partly in hogsheads and partly in bags.’ But the expression, or symbol, as Lord Reid preferred to call it, has been found to create difficulties. In Millen v Grove [1945] VLR 259 at 260 Gavan Duffy J referred to a notice to quit as having ‘invited trouble by the common and deplorable affection for the form “and/or”’. In Looke v Parbury Henty & Co Pty Ltd [1950] VLR 94 at 98 Barry J said: ‘I agree that the expression “and/or” is commonly an indication that the draftsman is not clear in his own mind about the matters with which he has to deal (cf Piesse, Elements of Drafting, pp. 52-57).’ In Neame v Neame’s Trs. [1956] SLT 57, the majority of the court read ‘and/or’, in a deed, as meaning nothing more than ‘and’. The Lord President, Lord Clyde, said (at 62): ‘But it would be most unfortunate if a confusing expression such as “and/or” were to become a common feature in Scottish marriage contracts or testamentary settlements.’ Lord Carmont, who differed from the majority, went further, and said (at 64) that in his opinion ‘the obscurity is radical’. Lord Russell concluded his judgment with the comment (at 64): -- 20 of 23 -- 21 ‘I would venture to add that in my judgment the phrase “and/or” is at best a loose and ambiguous term which would be better not to be used in formal legal writs affecting patrimonial interests.’ Lord Sorn joined the chorus of disapproval when he said (also at 64): ‘The expression “and/or” is not a happy one and, if occurring in a simple gift, might give rise to a serious problem of construction.’ In my opinion, the expression is particularly unhappy when it is used in a statement of claim, which should express precisely the foundation of the proceeding. In the present case, as has been explained, an almost endless series of additional and alternative allegations would be conveyed by an analysis of the claim made in this way.” [12] In Employers Mutual Liability Insurance Co of Wisconsin v Tollefsen (1935) 263 NW 376 Fowler J said, at 377: “It is manifest that we are confronted with the task of first construing ‘and/or,’ that befuddling, nameless thing, that Janus-faced verbal monstrosity, neither word nor phrase, the child of a brain of someone too lazy or too dull to express his precise meaning, or too dull to know what he did mean, now commonly used by lawyers in drafting legal documents, through carelessness or ignorance or as a cunning device to conceal rather than express meaning with view to furthering the interest of their clients. We have even observed the ‘thing’ in statutes, in the opinions of courts, and in statements in briefs of counsel, some learned and some not.” [13] His Honour’s choleric exegesis might not call for agreement in all its elements but it is difficult not to register general agreement with his underlying protest. [14] While the conjunction “and/or” is now almost a commonplace in commercial documents and some other forms of legal drafting, it should not be used in a pleading. Pleadings are intended to clarify and concentrate the issues in an action. They will not do that if the language used leaves open to reasonable construction a large number of permutations and combinations such as occurs in this case. The pleadings join each of the defendants by “and/or” in many places. Thus, a construction of them ranges from alleging that one defendant of the five is liable to all defendants being liable.” [38] In Clarke v La Franchi,9 the Appeal Division of the Supreme Court of Victoria dealt with a challenge to the validity of charges brought under the Building Societies Act 1986 (Vic). In that case, Tadgell J said: “The expression is apt to cause trouble in a legal document: even when used as an attempt at a shortcut, it may be pregnant with ambiguity or tend to 9 Supreme Court of Victoria, Appeal Division, unreported, 10 June 1994. -- 21 of 23 -- 22 generate more work than it is intended to save. A draftsman using “and/or” who makes the effort to write out in full what is rolled up in it may often find that it does not express what was really meant.”10 [39] In this case, there are two answers to the appellant’s arguments. First, the reference to a series of breaches of obligations does not amount to the creation of duplicity. It is still only one charge which is being brought against a respondent but in reliance upon an act or combination of acts or omissions. There is nothing in the legislation which would support a conclusion that a failure to discharge a safety and health obligation can only be established by reliance upon a single alleged act or omission. It must be the case that circumstances can arise in which a failure is constituted by more than one act or omission or a combination thereof. As was said by Doyle CJ in Diemould Tooling Services Pty Ltd v Oaten:11 “A number of acts or omissions on the part of the employer may bring about the contravention of the statutory command on a given occasion. One or more of them taken alone might suffice to do so. In the case of others, it might be the combination that gives rise to the breach of statutory command.” [40] Secondly, even if there were duplicity, it is specifically allowed for under the Act. Section 234(2) of the Act authorises the prosecution to allege more than one contravention of a safety and health obligation under s 31 within a single charge provided that the acts or omissions giving rise to the contravention happened within the same period and in relation to the same mine. [41] While the use of the term “and/or” is inelegant and should be avoided, its presence in the complaint does not render the charges unintelligible. Conclusion [42] The appellant has not demonstrated that the Industrial Magistrate fell into error. The appeal is dismissed. COLEMAN v BELL [43] The appellant in this appeal advances a separate argument about the two charges laid against him. [44] The first charge is that, on 5 June 2012, he failed to discharge the obligation imposed upon him as Site Senior Executive under s 39(1)(a) of the Act. The second charge is that, on 5 June 2012, he failed to discharge the obligation imposed upon him under s 36(1)(a) of the Act. 10 At 40. 11 [2008] SASC 197 at [25]. -- 22 of 23 -- 23 [45] Each charge alleges that the failure to discharge the relevant obligation occurred on 5 June 2012, the date of Mr Scovell’s fatal injury. Mr Coleman argues that as he ceased to be Site Senior Executive on 14 February of that year, he could not have been in breach on 5 June. So much can be accepted. But, the liability to be charged for a failure to discharge an obligation will continue to exist even when the person ceases to be subject to the Act. A failure to comply with an obligation need not coincide with an event which is alleged to have been the result of that failure. A failure to comply may result in an injury at a time when the particular person is no longer bound by the Act. [46] Mr Bell proposes to seek an amendment to the charges which will allege that the failure to comply occurred at a time when Mr Coleman was the Site Senior Executive. That is consistent with the particulars which were originally provided with the charge. It is an application which, on the material, one might expect to be granted. In that case, there is no point in considering this argument any further. [47] For those reasons, and those given in Addinsall v Bell, the appeal is dismissed. McDONALD v BELL [48] For the reasons given in Addinsall v Bell the appeal is dismissed. MCG QUARRIES PTY LTD [49] For the reasons given in Addinsall v Bell the appeal is dismissed. The notice of contention [50] In light of the decision in each appeal, the notice of contention need not be considered. -- 23 of 23 --