Coggins v Sunmanor Pty Ltd [2010] ICQ 25

CITATION: Dean Allan Coggins AND Sunmanor Pty Ltd (C/2009/60) - Decision <http://www.qirc.qld.gov.au> INDUSTRIAL COURT OF QUEENSLAND Workplace Health and Safety Act 1995 - s. 164(3) - appeal against decision of industrial magistrate Dean Allan Coggins AND Sunmanor Pty Ltd (C/2009/60) PRESIDENT HALL 17 June 2010 DECISION [1] By a complaint made before a Justice of the Peace in Cairns on 19 February 2009, Sunmanor Pty Ltd (the Respondent) a corporation under the law, was charged with a breach of s. 24 of the Workplace Health and Safety Act 1995 (the Act). The Public Officer who made the complaint was Dean Allan Coggins (the Appellant), an Inspector duly appointed under the Act. The obligation said to have been breached was the obligation at s. 28(1) of the Act, viz., the obligation of a person conducting a business or undertaking to ensure that other persons are not affected by the conduct of the business or undertaking. A circumstance of aggravation was alleged, viz., that the breach caused the death of Georgina Hatzidimitriadis. [2] When the complaint was mentioned by the Industrial Magistrate at Cairns, a plea of "not guilty" was entered. Subsequently, the allegation about a circumstance of aggravation was abandoned. A plea of "guilty" was then entered. How it was that the complaint that Ms Hatzidimitriadis was "affected" by the conduct of the Respondent's business or undertaking might still be pressed after the withdrawal of the obligation of a circumstance of aggravation appears at s. 28(2) of the Act. "Affected" does not have the meaning of "act upon", compare The Shorter Oxford Dictionary, 3 rd Ed. Section 28(2) provides: "(2) The obligation is discharged if the person, each of the person's workers and any other persons are not exposed to risks to their health and safety arising out of the conduct of the relevant person's business or undertaking.". It is with the exposure to risk, not the fruit of the risk that s. 28 of the Act is concerned. [3] It is convenient to reproduce the particulars: "Particulars Person: Georgina HATZIDIMITRIADIS Workplace: Russell River via Miriwinni, QLD 4871 Business or undertaking: White water rafting Risk: The risk is the risk of injury, including the risk of death to Georgina HATZIDIMITRIADIS Hazard(s) The source of the risk emanates from: (1) kayaking in white water and/or (2) the system adopted for guiding people in kayaks along the river and/or (3) the system adopted for managing emergency rescues.". [4] The "workplace" is sufficiently described. With respect, the relevant "business or undertaking" was not "white water rafting" but "white water kayaking". A raft would have been too large to pass through the gaps between the rocks. Further, a raft can accommodate 4 to 5 tourists and a guide. The kayaks in use could accommodate 2 people. A ratio of one guide per tourist was not economically viable. The Respondent was locked into a system of risk management which did not place a guide in the kayak. As to the "hazard(s)", I accept the risk emanated from the hazard of kayaking in the "white water" at the "workplace". With respect, the matters identified at "hazard(s)" 2 and 3, are not hazards, but deficiencies in the Respondent's systems to eliminate and/or minimise the risk. -- 1 of 5 -- 2 [5] At the commencement of the hearing of the plea of guilty, the Industrial Magistrate at Cairns was supplied with an agreed statement of facts which I reproduce [formal parts omitted]: "Background Information 1. Sunmanor Pty Ltd - ACN 061 191 517 - ('the Defendant') is an Australian propriety company limited by shares and conducts business or undertaking namely white water rafting/kayaking. 2. This business has been operating continuously since 1990. 3. At the relevant time the Defendant employed approximately 16 river guides as part of its business or undertaking. 4. On July 29 2008 the defendant had transported 11 paying customers by mini bus to a drop off point known as the Golden Hole at the base of Mount Bartle Frere. They comprised 2 from Germany, 2 from France, 2 from Greece, 1 from Canada and 4 from Australia. 5. On July 29 2008 the Defendant provided 2 river guides to conduct and supervise the white water kayaking activity. 6. On 29 July 2008 a tour guide gave a safety talk and asked if anyone had adverse medical conditions. A condition for participation form for adoption by signing was distributed together with a safety handout printed in English, German, French, Japanese, Chinese and Korean. The Incident 7. Upon arrival at the Golden Hole on July 29 2008 7 Archilles model KSB 116 sports kayaks were unloaded along with safety equipment and these were carried by the guides and participants some 2.5 kilometres over approximately a 40min walk to the location. 8. Upon arrival at the kayaking starting location passengers were given a safety briefing on the river bank prior to being paired off with each couple to a kayak. Kayak paddling instructions were conducted with the customers in passive water to the Trip Leader's satisfaction. One tour guide was in the first (leading) kayak with a passenger while the other tour guide had a kayak to himself. 9. The group passed through 4 rapids before the group was directed to land on the river right bank, 10 meters above the right hand side entry of the rapid known as Rauren Hopia. They disembarked and were shown the rapid and given safety instructions prior to commencing the rapid. It was explained by the guides that transit was to be by the right side of the rapid. This rapid had three courses; the right side rapid, the centre and the left. It was explained by the guides that the middle rapid should specifically not be entered. This was because it was considered there were high risks associated with that rapid. 10. Passengers were instructed to remain on the bank beside the rapid while the guide with a passenger successfully demonstrated the chosen safe path through the right side rapid. This demonstration included the paddle of the front passenger being used to assist with the kayak being directed down the right side rapid. This guide then disembarked and assumed a designated downstream rescue cover position, river left. 11. The second kayak with 2 Greek participants happened to turn left towards the left side above the rapid. 12. Attempts were made by the guide on rescue cover at the entrance point on the river right side to redirect the kayak using verbal and visual directions, and a rescue rope which was thrown to the kayak, but the kayak capsized and the passengers floated into the middle rapid exposing them to the risk stated in paragraph 9. Facts Relevant to the Objective Gravity of the Offence 13. The risk management system adopted by the Defendant to minimise the likelihood of a kayak going through the middle rapid was to position a guide on the river right side on a rock at the entry to the rapid and to use a combination of verbal and visual instructions to guide the kayaks towards him down the right side and if required to throw a rescue rope to a kayak that had drifted towards river left and for those kayaks maintaining a river right position, to grab the front passenger's paddle to assist the kayak in turning to the right after entering the right side rapid as demonstrated. -- 2 of 5 -- 3 14. The rear Greek participant had no kayaking experience and the front Greek participant had some previous experience in terms of the navigation and paddling of a kayak, the extent to which was unknown. 15. Of the 2 Greek participants the one positioned at the rear of the kayak (primary steering position) didn't comprehend English. The front Greek participant could understand and speak English and had translated all safety and navigational instructions provided by the guides to the other Greek participant. Although the guides could not understand or speak Greek, they were satisfied with this arrangement. 16. Whilst 1 of the participants was being rescued (the Nephew) the other remained exposed to the risks of the middle rapid. The position of this participant made it difficult for the guides to undertaking [sic] a rescue as one had to enter the middle rapid (high risk area) to affect a rescue to free the participant whilst the other maintained a safety line with a rope with the assistance of the Nephew. 17. Since the incident on July 29 2008 the defendant has taken steps to: Advance safety equipment, rafting procedures, on river radio communication, raft guide training standards, along with establishing an independent safety auditor. The Complaint 18. The defendant held an obligation under section 28(1) of the Workplace Health and Safety Act 1995 (the Act) and failed to discharge that duty contrary to section 24 of the Act. 19. The breach exposed persons to risk of death or grievous bodily harm however the complaint does not allege that the breach was causative of any injury. Penalty 21. At the relevant time the statutory range was $0 to $187,500. Matters Relevant to Penalty 22. The defendant cooperated with the investigation. 23. There is no suggestion that the defendant is other than a good corporate citizen. 24. The defendant has no prior convictions under the Act. 25. The defendant entered a timely plea.". [6] Additionally, the Solicitor who appeared for the Respondent handed up a bundle of documents directed to establishing the capacities of the Respondent's management and a long-term commitment to safety in the conduct of the Respondent's operations. The materials detail the experience of the sole (and working) Director viz., Mr Francis, and the qualifications and experience of the General Manager viz., Mr Carrette. Included with the documents was a document headed "Summary of Attached Company Evidence of Commitment to Safety" demonstrating active steps taken by the Respondent over the years 2006, 2007, 2008 and 2009 to develop a safe method for the conduct of the Respondent's operations, to monitor and review the procedure established and to meet regularly with the guides. That material is not controversial. [7] However, the Solicitor for the Respondent also handed up a note relating to a 2006 investigation of the Respondent's activities undertaken by the Division of Workplace Health and Safety. It was submitted that the Respondent had been given a clean bill of health. In my view, that submission adopts an overly generous view of the contents of the document. The document shows that on a previous occasion following a complaint, there had been an investigation of the Respondent's activities and that no further action had been taken. As Counsel for the Appellant submits, there is no basis for assuming the conditions in late 2006 were the same as the conditions on 29 July 2008. One could perhaps infer that the investigation revealed a reliance on purely administrative controls and that no adverse view was formed on that reliance. However, there is no basis for an assumption that the Inspector who carried out the earlier investigation was aware that the centre or middle rapid was so dangerous as to be a "no go" area. It is the proximity of the centre or middle rapid to the right hand rapid which raises the adequacy of administrative controls. Further, the obligation at s. 28 of the Act is imposed on the obligation holder. Reliance on the directions and/or advice of an omniscient inspectorate is insufficient. In my view, the report is of no assistance. To the extent that the Industrial Magistrate gave weight to the document, I consider that His Honour erred. -- 3 of 5 -- 4 [8] Of particular concern is a submission made by the Respondent's solicitor to the Industrial Magistrate, and renewed upon the Appeal to this Court, that the Respondent had pleaded guilty on the basis that it had failed to stop the kayak moving from the right hand rapid to the centre or middle rapid. It was put that at that point the Respondent had no control over the situation. In reliance on the circumstance that the occupants of the kayak had been given a demonstration of how to proceed down the river and had been given instructions (which had been disobeyed) about how to proceed down the river, it was (and is) submitted that any breach by the Respondent was technical. The Industrial Magistrate appears to have accepted that submission. In my view the submission is misconceived. [9] The gravamen of the criticism of the Respondent's conduct has always been that, knowing that its staffing levels limited the Respondent's capacity to intervene to stop a kayak moving from the right rapid to the centre or middle rapid, and that the staffing levels limited the Respondent's capacity to render assistance to a kayak which had found its way to the centre or middle rapid, the Respondent relied entirely upon a demonstration and oral directions coupled with gestures. A compounding circumstance was that the nephew did not speak English and was compelled to rely on a translation by the deceased. The comment that the occupants of the kayak disobeyed instructions is made in circumstances in which one cannot know whether the nephew, who occupied the prime steering position, had ever become aware of the instruction. Equally importantly, if in truth the breach occurred at the point at which the kayak moved from the right hand rapid to the middle or centre rapid, and if in truth from that point onward events were beyond the Respondent's control, the Respondent had a good defence, see s. 37(2) of the Act. The Respondent was seeking to plead guilty whilst seeking to be sentenced on the basis that the Respondent was not guilty at all. [10] The Industrial Magistrate accepted the plea of guilty and convicted the Respondent. The Industrial Magistrate did not record a conviction. No complaint is made about that. The Industrial Magistrate imposed a fine of $2,000, in default of payment levy on distress was ordered to apply. The Appeal is on the quantum of the fine. [11] The Appellant accepts that the determination of the appropriate money amount of a fine is a quintessential exercise of discretion. The discretion is vested in the sentencing Industrial Magistrate. The Appellant accepts that this Court may interfere only where the exercise of discretion has "miscarried" as described in House v The King1 per Dixon, Evatt and McTiernan JJ. In my view, in accepting the submission that any breach was but "technical", the Industrial Magistrate did err in principle. I should add also that a fine of $2,000, which is 0.8% of the maximum which might have been imposed upon a corporate defendant, seems to me to be clearly inadequate on its face. [12] Fixing the appropriate level of the fine is another and a more difficult task. Whilst I continue to adhere to the view that so much should not be made of mitigation that the obligations imposed by the Act are whittled away, compare Waltham v Cairns Synergy Electrical Pty Ltd2, I have to acknowledge that in this case there was much by way of mitigation. The Respondent has no prior convictions under the Act. Once the allegation of aggravation was abandoned, the Respondent entered a timely plea of guilty (and the Appellant concedes as much). The Respondent cooperated with the investigation of the incident. The Appellant concedes that the Respondent is otherwise a good corporate citizen. For all the criticism which may properly be levelled at reliance upon administrative controls, administrative controls did in fact work for a considerable period of time. It seems to me that the fine should be modest. [13] I set aside the fine imposed by the Industrial Magistrate. In lieu thereof, I order that the Respondent pay a fine in the sum of $20,000. In the event of default, levy on distress is to apply. I confirm the Industrial Magistrate's decision not to record a conviction. [14] Additionally to imposing a fine, the Industrial Magistrate ordered the Respondent to pay $65.40 by way of filing fees. No complaint is made about that order. The Industrial Magistrate also ordered the Respondent to pay $1,500 in respect of investigation costs. Costs in the sum of $4,000 had been sought. The quantum of the investigation costs awarded by the Industrial Magistrate is challenged on the Appeal. For the Respondent, it is contended that costs incurred in investigating the abandoned allegation of aggravation are not recoverable. That submission seems to me to place an unjustifiable gloss on the language of s. 168A of the Act (which vests the power to award investigation costs). The difficulty which I have with the Appellant's submissions about costs is that on the limited materials placed before the Industrial Magistrate, His Honour was not in position to determine whether costs were reasonable or not. His Honour was simply given a chart (also provided to this Court) identifying dates upon which activity by way of investigation occurred, naming the inspector who conducted the activity, nominating the number of hours involved, nominating an hourly rate and identifying a sum of money which was the result of the mathematical calculation. There was not even an affidavit swearing to the fact that the figures were accurate. Indeed, the document was not signed. I make no criticism of the Inspector who acted for the Appellant at first instance. My recollection of other cases before this Court is that the Inspector used a 1 House v The King (1936) 55 CLR 499 at 504 to 505 2 Waltham v Cairns Synergy Electrical Pty Ltd (2007) 185 QGIG 40 -- 4 of 5 -- 5 document in a form which had been used on many previous occasions. However, now that the issue is raised, the conclusion that the form provides inadequate information is inevitable. There is no Cross-Appeal. There is not a Notice of Contention. In those circumstances, I shall not interfere with the decision of the Industrial Magistrate upon the matter of investigation costs. [15] I reserve the costs of the Appeal. Dated 17 June 2010. D.R. HALL, President. Released: 17 June 2010 Appearances: Mr P. Major of Legal and Prosecution Services, Department of Justice and Attorney-General for the Appellant. Mr H. Mellick of Mellick Smith & Associates, Solicitors for the Respondent. -- 5 of 5 --