Daytona Trading Pty Ltd v McGarry [2014] ICQ 21

INDUSTRIAL COURT OF QUEENSLAND CITATION: Daytona Trading Pty Ltd v McGarry [2014] ICQ 021 PARTIES: DAYTONA TRADING PTY LTD (appellant) v JOHN MCGARRY (respondent) CASE NO: C/2014/2 PROCEEDING: Appeal against a decision of the Industrial Magistrate DELIVERED ON: 11 July 2014 HEARING DATE: 4 March 2014 MEMBER: Martin J, President ORDERS: 1. Appeal allowed in part. 2. The respondent is to provide the further and better particulars sought in the application filed on 4 July 2013 by no later than 1 August 2014. CATCHWORDS: MAGISTRATES – COMMENCEMENT OF PROCEEDINGS – PARTICULARS AND CONTENT OF ORIGINATING PROCESS – DESCRIPTION OF OFFENCE – GENERALLY – where the respondent laid a complaint against the appellant company, alleging breaches of electrical safety obligations – where the respondent provided particulars of the complaint, but refused a request to provide further particulars – whether the complaint and particulars met the criteria for validity set out in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 – whether the Industrial Magistrate erred in not ordering that further particulars be provided Electrical Safety Act 2002, ss 10, 27, 30, 46 Industrial Relations Act 1999, s 341(2) CASES: Bell v Hendry [2014] ICQ 18, applied Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77 , cited Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1, applied APPEARANCES: S T Farrell for the appellant instructed by Messrs Kaden Boriss M J Byrne QC with T Cvetkovski for the respondent instructed by the Department of Regional Workplace Health and Safety -- 1 of 9 -- 2 [1] On 27 February 2012 Jason Garrels was electrocuted while working on a property in Clermont which was being developed for the construction of domestic residences. [2] On 25 February 2013 the respondent made a complaint that the appellant “being a person on whom an electrical safety obligation prescribed by section 30 of the Electrical Safety Act 2002, was imposed did fail to discharge that obligation contrary to section 27 of the Electrical Safety Act 2002, in that being an employer the said Daytona Trading Pty Ltd did fail to ensure that its business or undertaking was conducted in a way that was electrically safe.” [3] The particulars of the complaint were set out in 13 paragraphs which were included in the body of the complaint. They were: 1. “DAYTONA TRADING PTY LTD was duly incorporated according to law. 2. DAYTONA TRADING PTY LTD was an employer or self employed person, more particularly, an employer. 3. DAYTONA TRADING PTY LTD conducted a business or undertaking which included the construction of residential duplex dwellings at 47 MacDonald Flat Road, Clermont, in the State of Queensland (the "site"). 4. The site comprised Lots 1-81 and common property. 5. On 27th February 2012, DAYTONA TRADING PTY LTD in the course of its business or undertaking caused to be provided a supply of electricity to the site, to allow for construction work to be undertaken; in particular at Lot 51 (the "incident site"). 6. On 27th February 2012, Jason Roy KERSHAW was engaged by DAYTONA TRADING PTY LTD as a general labourer and plant operator for general earthmoving on the lots at the site including work in and around the incident site; namely backfilling trenches in which electrical cabling was laid. 7. On 27th February 2012, Jason Jon GARRELS and Clayton Laurence REYNOLDS were engaged by DAYTONA TRADING PTY LTD as general labourers at the site to provide labouring including assistance to tradespeople, subcontractors or other workers, to clean, move material and other general duties as directed or requested by those requiring assistance. 8. Jason Jon GARRELS, Clayton Laurence REYNOLDS and Jason Roy KERSHAW were "workers" as that term is used in the Electrical Safety Act 2002 ('the Act'). 9. On 27th February 2012, Jason Jon GARRELS and Clayton Laurence REYNOLDS provided assistance to Jason Roy KERSHAW at the site. 10. On 27th February 2012, electrical equipment; namely construction switchboards were at the site; in particular at the incident site. 11. On 27th February 2012, Jason Jon GARRELS while assisting to move a construction switchboard at the incident site was electrocuted. -- 2 of 9 -- 3 12. DAYTONA TRADING PTY LTD failed to ensure persons, in particular Jason Jon GARRELS, were electrically safe (as that term is used in the Act) by:- a) Allowing, permitting or enabling the performance of work in circumstances where construction wiring, and/or electrical equipment were energised; b) Failing to ensure electrical equipment was electrically safe; c) Failing to ensure persons, in particular, Jason Jon GARRELS, were free from electrical risk; d) Failing to ensure persons, in particular, Jason Jon GARRELS were free from electrical risk from the construction wiring installation and its electrical equipment by failing to implement, monitor and control the isolation of electrical equipment; e) Failing to provide adequate information to Jason Jon GARRELS to ensure he, in the course of his work, was able to identify existing hazards and adequately assess consequential risk; f) Failing to provide any or any adequate instruction and supervision to Jason Jon GARRELS to ensure he was aware of hazards associated with electrical equipment in the course of his work; g) Failing to implement and monitor controls for electrical risks at the site; h) Failing to provide any or any adequate induction and training to Jason Jon GARRELS to ensure he was aware of hazards associated with electrical equipment in the course of his work; and i) Failing to prohibit the performance of work where the construction wiring, and/or electrical equipment was energised. 13. Having regard to the likelihood of harm and the likely severity of harm, DAYTONA TRADING PTY LTD failed to ensure the electrical risk to Jason Jon GARRELS was as low as reasonably achievable.” [4] The appellant applied for an order that the complaint be struck out or, alternatively, that the respondent provide further and better particulars. That application was dismissed on 9 December 2013. The Industrial Magistrate held: (a) that the particulars “do disclose the essential factual ingredients of the offence”, and (b) “a complainant is not required to particularise what a defendant should have done when the complainant’s primary position is to lead evidence to show that it had done nothing. … the particulars … adequately inform and fairly inform the defendant as to the case it has to meet …” The appeal [5] The grounds of appeal contained in the appellant’s application to appeal are: (a) The Industrial Magistrate erred: -- 3 of 9 -- 4 (i) by failing to have regard to the “obligation creating sections” of the Electrical Safety Act 2002 (“the Act”), (ii) by failing to apply the principles in N K Collins Industries Pty Ltd v The President of the Industrial Court of Queensland & Anor [2013] QCA 179 and Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531, and (iii) by finding that the complaint contained the essential factual ingredients necessary to establish its validity. (b) Alternatively, the Industrial Magistrate erred by concluding that: (i) the failure of the complainant to provide particulars of acts and omissions on the face of a complaint was not a matter of unfairness to the defendant, and (ii) by failing to order the provision of further and better particulars. The Electrical Safety Act 2002 [6] So far as is relevant, the Act1 contains the following provisions: “27 Obligation offence provision A person on whom an electrical safety obligation is imposed must discharge the obligation. …” “30 Obligation of employer or self-employed person (1) This section applies to an employer or self-employed person. (2) A person to whom this section applies has an obligation to ensure that the person’s business or undertaking is conducted in a way that is electrically safe. (3) Without limiting subsection (2), the obligation includes— (a) ensuring that all electrical equipment used in the conduct of the person’s business or undertaking is electrically safe; and (b) if the person’s business or undertaking includes the performance of electrical work, ensuring the electrical safety of all persons and property likely to be affected by the electrical work; and (c) if the person’s business or undertaking includes the performance of work, whether or not electrical work, involving contact with, or being near to, exposed parts, ensuring persons performing the work are electrically safe.” “46 Defence in proceeding for offence against obligation offence provision It is a defence in a proceeding against a person for an offence against the obligation offence provision for the person to prove that the 1 Reprint 4E applied at the relevant time. -- 4 of 9 -- 5 commission of the offence was due to causes over which the person had no control. …” [7] The term “electrically safe” which appears in s 30(2), (3)(a) and (c) is defined in s 10(2): “(2) Electrically safe means— (a) for a person or property, that the person or property is free from electrical risk; and (b) for electrical equipment or an electrical installation, that all persons and property are free from electrical risk from the equipment or installation; and (c) for the way electrical equipment, an electrical installation or the works of an electricity entity are operated or used, that all persons and property are free from electrical risk from the operation or use of the equipment, installation or works; and (d) for the way electrical work is performed, that all persons are free from electrical risk from the performance of the work; and (e) for the way a business or undertaking is conducted, that all persons are free from electrical risk from the conduct of the business or undertaking; and (f) for the way electrical equipment or an electrical installation is installed or repaired, that all persons are free from electrical risk from the installing or repairing of the equipment or installation.” [8] The term “electrical risk” which appears in s 10(2) is defined in s 10(1): “(1) Electrical risk means— (a) in relation to a person, the risk to the person of death, shock or injury caused directly by electricity or originating from electricity; or (b) in relation to property, the risk to the property of— (i) damage caused by a cathodic protection system; or (ii) loss or damage caused directly by electricity or originating from electricity.” [9] The term “free from electrical risk” which appears in s 10(2) is defined in s 10(4): “free from electrical risk, for a person or property, means that the electrical risk to the person or property is as low as reasonably achievable, having regard to— (a) likelihood of harm; and (b) likely severity of harm.” The requirements of a valid complaint [10] In his reasons the Industrial Magistrate said: “What is the point of the complainant particularising what Daytona should have done when the complainant will lead evidence to prove that the complainant considers necessary to the necessary standard that Daytona did nothing or if it did something it was inadequate. In my judgment, a complainant is not required to particularise what a defendant should’ve done when the complainant’s primary position is to lead evidence to show that it had done nothing. If the -- 5 of 9 -- 6 complainant fails to establish that the defendant did nothing then the complainant will have to show to the necessary standard what the defendant did was inadequate, which in my judgment is not exactly the same thing as proving what it should’ve done, as there may have been a number of ways where the risk could be reduced to what is [as] low as reasonably achievable.” [11] The Industrial Magistrate erred in his expression of the requirements for a valid complaint. [12] I have set out in Bell v Hendry2 the matters which must be considered when considering the validity of a complaint. I will not repeat all of them here. [13] The common law requirements for a valid complaint were considered in Kirk v Industrial Court of New South Wales3 and the following were identified: (a) A defendant is entitled to be told not only of the legal nature of the offence which is charged, but also of the particular act, matter or thing alleged as the foundation of the charge; (b) The complaint must inform the court of the identity of the offence with which it is required to deal and provide the accused with the substance of the charge which he or she is called upon to meet; (c) Such a charge “must at least condescend to identifying the essential factual ingredients of the actual offence”; and (d) An information (complaint) must specify “the time, place and manner of the defendant’s acts or omissions”.4 [14] In Kirk, the offence-creating provisions of the Occupational Health and Safety Act 2000 (NSW) were similar to ss 27 and 30 of the Act. There, a general expression of the employer’s duty (s 15(1)) is followed by examples of what may amount to contraventions of that sub-section (s 15(2)). This structure is replicated in ss 30(2) and 30(3) of the Act now under consideration. [15] The particulars of the complaint considered in Kirk are similar, in a number of ways, to the complaint in this matter and it will assist in the analysis of the complaint against the appellant if they are set out. The relevant part was described in this way: “[22] The Kirk company's offence against s 15(1) was stated in the application as: “ … that the Defendant, on 28 March 2001, at ‘Mount Hercules Farm’ … a work place operated by the Defendant FAILED TO ensure the health, safety and welfare at work of its employees, in particular Graham George Palmer, contrary to s 15(1) … .” The following particulars were given of the offence: “The particulars of the offence are that the Defendant failed to: 2 [2014] ICQ 18. 3 (2010) 239 CLR 531 at [26]. 4 Johnson v Miller (1937) 59 CLR 467 at 489 per Dixon J. -- 6 of 9 -- 7 i. provide or maintain systems of work that were safe and without risks to health in relation to the operation of the Polaris All Terrain Vehicle (‘ATV’); ii. provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of its employees in relation to the operation of the Polaris All Terrain Vehicle (‘ATV’); iii. to take such steps as are necessary to make available in connection with the use of any plant (namely the ATV) at the place of work adequate information about the use for which the plant is designed and about any conditions necessary to ensure that, when put to use, the plant is safe and without risks to health; iv. ensure that the Polaris All Terrain Vehicle (‘ATV’) was only operated by persons with appropriate training. v. adequately identify, assess and control risks and hazards in relation to the operation of the ATV on the farm.” The statement of the offences concluded with the allegation that, as a result of the Kirk company’s failures, its employees, in particular Mr Palmer, were “placed at risk of injury” and that Mr Palmer had suffered fatal injuries.” [16] The inadequacy of those particulars was dealt with in this way: “[28] The statements of the offences as particularised do not identify what measures the Kirk company could have taken but did not take. They do not identify an act or omission which constitutes a contravention of ss 15(1) and 16(1). The first particular of the s 15(1) offence suggests that the Kirk company had some systems relating to the operation of the ATV in place, but that they were not sufficient. It does not identify the deficiency in the system or the measures which should have been taken to address it. The second particular does not identify what information, instruction or training was necessary to be given to Mr Palmer or the other employee of the Kirk company. The particulars of the s 16(1) offence say nothing about what should have been done to avoid exposing the contractors to risk to their health and safety from the use of the ATV. Needless to say, the appellants could not have known what measures they were required to prove were not reasonably practicable.” (emphasis added) [17] The majority then went on to consider the reasoning which had been applied by the Industrial Court of New South Wales and said: “[34] … References to guarantees and emphasis upon general classes of risks which are to be eliminated, tend to distract attention from the requirements of an offence against ss 15 and 16. The approach taken by the Industrial Court fails to distinguish between the content of the employer’s duty, which is generally stated, and the fact of a contravention in a particular case. It is that fact, the act or omission of the employer, which constitutes the offence. Of -- 7 of 9 -- 8 course it is necessary for an employer to identify risks present in the workplace and to address them, in order to fulfil the obligations imposed by ss 15 and 16. It is also necessary for the prosecutor to identify the measures which should have been taken. If a risk was or is present, the question is – what action on the part of the employer was or is required to address it? The answer to that question is the matter properly the subject of the charge.” (emphasis added) [18] With those requirements in mind, I turn to another matter which should be considered when assessing a complaint under the Act. The obligation in s 30 – to ensure that a business is conducted in a way that is electrically safe – requires consideration of the term “free from electrical risk”. That term is defined in s 10 as meaning that the electrical risk to the person is as low as reasonable achievable, having regard to: (a) likelihood of harm; and (b) likely severity of harm. [19] That requirement is mentioned in paragraph 13 of the Particulars but without any allegation about either the likelihood or likely severity of harm. These are two of the “essential factual ingredients” which just be contained in the complaint. Merely adverting to them, by saying “Having regard to the likelihood of harm and the likely severity of harm …” is insufficient. It is upon the definition of “free from electrical risk” that the obligation in s 30 is based. Any allegation that that obligation has been breached necessarily requires an assertion based upon the likelihood of harm and the likely severity of harm: what is the likelihood? what is the likely severity? The allegation in paragraph 13 of the Particulars does not contain any assertion about the likelihood or likely severity of harm. It simply adverts to these matters and then rehearses the definition set out in s 10(4). As such, it is not an adequate particular. [20] This matter was not, however, the subject of submissions by either party. I will not, therefore, take it any further. [21] Some particulars in the complaint do not answer the requirements outlined in Kirk. Particulars 12 (b) and (c) are no more than recitations of obligations. [22] The particulars relating to the provision of information or instruction (Particulars 12 (e), (f) and (h)) do comply with the requirements in Kirk in that they do identify the information, instruction or training which the complainant says should have been given. [23] Particulars 12 (a), (d) and (g) are essentially the same in that they all refer to allowing work to be done in the absence of controls. What they do not do is identify what should have been done. As was said in Kirk5, “the question is – what action on the part of the employer was … required to address” the risk. [24] Particular 12(i) does answer the requirements set out in Kirk because it nominates the omission which is alleged against the defendant, namely, a failure to prohibit the performance of work where the wiring etc. was energised. 5 Kirk at [34]. -- 8 of 9 -- 9 [25] In so far as it relies upon those particulars which satisfy the requirements in Kirk the complaint is valid. The request for further and better particulars [26] The request made was, in essence, for further information concerning the basis of the complaint. In particular, whether the complainant relied upon identified parts of s 30 of the Act. It was, in all respects, a request which should have been answered. [27] It is not sufficient for a complainant to answer such a request or to seek to deflect an attack on the validity of the complaint by, in effect, directing the defendant to the brief of evidence. On this point the complainant’s written submission contained the following: “It is difficult to accept how the learned magistrate has erred; unless the appellant is approaching the case by ignoring the brief of evidence.” [28] It is the complaint, together with its particulars, which is the touchstone for the determination of the relevance of any evidence sought to be called. A defendant is entitled to know what breaches are alleged and not to be placed in the position of having to trawl through a brief of evidence in an effort to understand the case against it. Orders [29] The appellant has succeeded with respect to the refusal by the Industrial Magistrate to order the provision of particulars. The appeal against the refusal to strike out the complaint has failed. [30] The appeal is allowed in part. The respondent is to provide the further and better particulars sought in the application filed on 4 July 2013 by no later than 1 August 2014. [31] I will hear the parties on costs. -- 9 of 9 --