Archer v Simon Transport Pty Ltd [2015] QDC 263

DISTRICT COURT OF QUEENSLAND CITATION: Archer v Simon Transport Pty Ltd [2015] QDC 263 PARTIES: KEVIN ARCHER (Appellant) v SIMON TRANSPORT PTY LTD (Respondent) FILE NO/S: BD2313 of 2015 DIVISION: Criminal PROCEEDING: Appeal (Justices Act 1886, s 222) ORIGINATING COURT: Magistrates Court of Queensland DELIVERED ON: October 21, 2015 DELIVERED AT: Brisbane HEARING DATES: October 21, 2015 JUDGE: Koppenol DCJ ORDER: 1. Appeal dismissed. 2. Appellant to pay Respondent’s costs of and incidental to the appeal on the standard basis on the highest District Court scale. 3. Certify for senior counsel. CATCHWORDS: CRIMINAL LAW – APPEAL - WORK HEALTH AND SAFETY – DUTY OF CARE – PARTICULARISATION OF ALLEGED BREACHES – VALIDITY OF COMPLAINT – Appellant alleged Respondent breached statutory duty of care – whether complaint adequately particularised alleged breach of duty – identification of measures alleged to be “reasonably practicable” – whether complaint valid. Work Health and Safety Act 2011, ss 18, 19(1), 32 Kirk v Industrial Court of NSW (2010) 239 CLR 531, applied COUNSEL: Mr P Matthews for Appellant Mr R A Perry QC for Respondent SOLICITORS: Legal and Prosecution Services of Workplace Health and Safety Queensland for Appellant Norton Rose Fulbright for Respondent -- 1 of 3 -- [1] In May 2015, the Magistrates Court struck out Appellant’s criminal complaint against Respondent. These reasons deal with the appeal against that order. [2] Appellant alleged in its complaint that Respondent breached its duty of care under section 19(1) of the Work Health and Safety Act 2011 when an employee of Respondent was injured while unloading one of its trucks at a customer’s worksite. [3] In essence, the magistrate found that the complaint failed to adequately set out the legal nature of the offence and its essential factual ingredients. Other findings were made but need not be considered for present purposes. [4] Section 19(1) required Respondent to “ensure, so far as is reasonably practicable, the health and safety of” its workers while they are at work. The term “reasonably practicable” is defined in section 18.1 Failure to comply with that duty is an offence under section 32. [5] In Kirk v Industrial Court of NSW (2010) 239 CLR 531, the High Court emphasised (at 557, 575), relevantly, that in a criminal complaint, the prosecution must identify the legal nature of the alleged offence and also the particular act, matter or thing alleged to constitute the contravening conduct. Their Honours also said (at 558) that in a case where a statutory duty is concerned with measures described as being “reasonably practicable”, the complaint alleging a breach of duty must identify “what measures the [defendant] could have taken but did not take”—otherwise the defendant “could not have known what measures they were required to prove were not reasonably practicable”. [6] The complaint here particularised Respondent’s alleged “failures” of the duty and the “control measures” that it could have implemented as follows: “7. Failures:- (a) SIMON TRANSPORT PTY. LTD. did not ensure, as far as reasonably practicable, the health and safety of, inter alia, George Henry NEW, while he was at work in that it failed:- (i) to develop and implement adequate work procedures to manage the hazards to sole transport drivers attending client workplaces to deliver, including unloading, bulk freight product; (ii) to develop safe work procedures for the unloading of bulk rolls of electrical cable at client premises; (iii) to undertake any, or any adequate risk assessment for the activity of unloading bulk rolls of electrical cable at client premises, including the manner of using client’s workers and mobile plant in the unloading activity, in accordance with the Code of Practice ‘How To Manage Work Health And Safety Risks’ 2011; 1 Section 18 provides as follows: “In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including— (a) the likelihood of the hazard or the risk concerned occurring; and (b) the degree of harm that might result from the hazard or the risk; and (c) what the person concerned knows, or ought reasonably to know, about— (i) the hazard or the risk; and (ii) the ways of eliminating or minimising the risk; and (d) the availability and suitability of ways to eliminate or minimise the risk; and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.” -- 2 of 3 -- (iv) to develop any, or any adequate safe systems of work in accordance with the Plant Code of Practice 2005, in particular, clause 5.8 thereof; (v) provide a standard of work health and safety equivalent to or higher than the standard required in the said Codes of Practice. 8. Control measures SIMON TRANSPORT PTY. LTD. could have implemented:- (a) develop safe work procedures for the unloading of bulk rolls of electrical cable at client premises, including ensuring that the client premises had adequate facilities, including parking and appropriate mobile plant, for unloading of bulk freight product; (b) develop and implement adequate work procedures to manage the hazards of sole transport drivers attending client workplaces to deliver, including unloading, bulk freight product; (c) exclusion zones to ensure, so far as is reasonably practicable, transport drivers were excluded from the vicinity of operating mobile plant in the unloading activity; (d) undertake a risk assessment for the activity of unloading bulk rolls of electrical cable at client premises, including the manner of using client’s workers and mobile plant in the unloading activity, in accordance with the Code of Practice ‘How To Manage Work Health And Safety Risks’ 2011 to ensure adequate controls were implemented; (e) develop adequate safe systems of work in accordance with the Plant Code of Practice 2005, in particular, clause 5.8 thereof.” [7] Appellant submitted that those particulars satisfied the Kirk requirements and the complaint was valid. [8] It is a basic proposition of the criminal law that the person charged with an alleged offence must be able to see precisely what it is that is alleged against him, her or it. [9] What, then, were the measures which were alleged to be those that Respondent could have taken but did not take? [10] The alleged “failures” in paragraph 7 of the complaint were introduced by the statutory phrase, “as [sic] far as [is] reasonably practicable”. Merely to recite those words and then say that Respondent failed to do certain things is insufficient, unless it is accompanied by a meaningful identification of how (in sub-paragraphs (i)-(v)) the work procedures or risk assessment or systems of work or safety standard fell short of what was alleged to have been reasonably practicable. No such identification was provided. Paragraph 8 of the complaint does not cure those deficiencies or provide any meaningful particularisation. It effectively repeats the allegations in paragraph 7 but adds an allegation in sub- paragraph (c) about exclusion zones. Again, there was no identification of how the relevant work procedures etc fell short of the expected standard, having regard to the definition of “reasonably practicable”. [11] Presumably, such fundamental issues were considered (a) during Appellant’s investigation of how the worker was injured, and (b) when Appellant prepared the criminal complaint. But be that as it may, the complaint clearly fails the Kirk test and is therefore invalid. [12] The appeal is dismissed. Appellant is to pay Respondent’s costs of and incidental to this appeal on the standard basis on the highest District Court scale. Certify for senior counsel. -- 3 of 3 --