All Souls St. Gabriel’s School Inc. v Thomas [2006] ICQ 51 (2006) 183 QGIG 765

[Extract from Queensland Government Industrial Gazette, dated 13 October, 2006, Vol. 183, No. 11, pages 765-768] INDUSTRIAL COURT OF QUEENSLAND Workplace Health and Safety Act 1995 - s. 166(3) - appeal against decision of industrial magistrate All Souls St. Gabriel's School Inc. AND Leon Thomas (C/2006/47) PRESIDENT HALL 5 October 2006 DECISION The appellant conducts a secondary school at Charters Towers which provides education in both academic and vocational subjects. The latter include agriculture and engineering subjects. On 6 May 2005 the respondent, a public officer within the meaning of s. 142A of the Justices Act 1886 and an inspector duly appointed under the provisions of the Workplace Health and Safety Act 1995 (the Act) made a complaint that contrary to s. 24(I) of the Act, the appellant had failed to discharge the workplace health and safety obligation imposed upon it by s. 28(3) of the Act. Section 28(3), at all times material to the complaint, provided: "An employer has an obligation to ensure other persons are not exposed to risks to their health and safety arising out of the conduct of the employer's business or undertaking.". The risk was particularised as the risk of death or injury (including death or injury to Scott Allen Burgess). The source of the risk was identified as the "use of a plasma arc cutting torch in the cutting of metal drums". A circumstance of aggravation was alleged, viz. the death of Scott Allen Burgess. The appellant pleaded guilty. The respondent did not seek the recording of a conviction and no conviction was recorded. A fine in the sum of $80,000 was imposed. The maximum penalty which the Acting Industrial Magistrate might have imposed was $375,000. This is an appeal against the quantum of the fine imposed by the Acting Industrial Magistrate. It was common ground by way of mitigation before the Acting Industrial Magistrate and on the appeal to this Court that there was: (a) a prompt plea of guilty; (b) remorse; and (c) the absence of prior conviction. In summary form, the substantial case developed by the appellant is that: (a) the Acting Industrial Magistrate was under a misapprehension as to the facts; (b) the Acting Industrial Magistrate wrongly applied the decision of this Court in Neilands v Darryl O'Neil (2001) 168 QGIG 134: and (c) the fine was manifestly excessive. It is useful to say something of the plasma arc cutting torch. The item of plant referred to was a UNIplas 401 plasma arc cutting torch. Plasma is a gas which has been heated to an extreme high temperature and ionised so that it becomes electrically conducted. When the gas or gas mixture reaches this high temperature, it is accelerated with high speed through a cutting nozzle. The process uses the plasma to transfer an electric arc to the work piece. The metal to be cut is melted by the heat of the arc and then blown away to produce an accurate, clean cut. The plant operates as very high temperatures and is specifically designed for cutting thin metals. It is also useful to say something of the metal drum which was being cut by Mr Burgess at the time of the explosion which caused his death. The drums, which had been procured by a teacher named Mr Beneke from an acquaintance and outside the school's normal procurement arrangements, bore a label identifying that the drum had previously contained "high quality monograde diesel engine oil". The label also cautioned that the drums should not be the subject of welding, cutting or drilling, nor should they be exposed to heat, flame, spark or static electricity because the residue or vapour may ignite or explode causing injury or death. It should be noted also that earlier on the day of the incident and under the direct supervision of Mr Beneke, Mr Burgess had successfully cut a similar drum without mishap and that, on completion of the task, residue within the drum had been identified. I accept that the plasma cutter had been purchased for use in the engineering course and not for use in the agricultural course; that Mr Beneke taught the agricultural course not the engineering course; that Mr Beneke had been able to remove the plasma cutter from a receptacle which should have been locked, because the gentleman in charge of the engineering course (Mr Toohey) had left the receptacle unlocked because he understood Mr Beneke was to remove the cutter to use for his own purposes; that when used in the engineering course the plasma cutter was used in a way which conformed to the appellant's obligations under the Act, and in conformity with each of the Risk Management Advisory Standard and the Plant Advisory Standard in the form which they took at all material times; that the program for the agricultural course, the job description for the vacancy filled by Mr Beneke and Mr Beneke's curriculum vitae gave no indication that instruction in the use of a plasma cutter was to be part of the agriculture course; and that neither Mr Toohey nor any other employee or agent of the appellant had any actual knowledge that Mr Beneke had resolved to instruct students in the use of the plasma cutter to cut drums to provide containers for fodder, and of the activities upon which Mr Beneke ventured in implementing that decision. I turn then to the misunderstandings attributed to the Acting Industrial Magistrate. At para 5 of the Acting Industrial Magistrate's reasons, His Honour said: -- 1 of 3 -- 2 "As a part of the agricultural skill subject students were to manufacture a number of feed bins by cutting 20 litre and 205 litre drums in half lengthwise.". The criticism is that (as indicated above) the activity upon which Mr Beneke had embarked was not an explicit part of the course of his position description or of his curriculum vitae. But it seems tolerably clear that the Acting Industrial Magistrate was aware of that. Para 16 of His Honour's reasons is in the following terms: "The defendant says that the use of the plasma arc cutting torch was not part of Beneke's position description, that he was not employed to or encouraged nor was he given permission to teach students how to use the plasma arc cutting torch.". It seems to me that para 5 was no more than an (entirely accurate) description by the Acting Industrial Magistrate of what in fact happened. It is to be noted that extracts from the recorded interview with the school Principal contained in the "Agreed Statements of Facts" handed to the Acting Industrial Magistrate indicate an acceptance that if Mr Beneke acted to make the cutting of drums part of the course, the cutting of drums became part of the course. For fullness, one should add, training in the preparation and use of fodder bins is an entirely unexceptional module for an agricultural course. It is then contended that at para 8, the Acting Industrial Magistrate said: "Notwithstanding this warning the defendant, through the activity of Mr Beneke, allowed Scott Burgess to use the plasma arc cutting torch on a 205 litre drum.". Emphasising the verb "allowed" it is contended that the Acting Industrial Magistrate failed to appreciate that the appellant had no knowledge of what Mr Beneke was doing. On the contrary, it seems to me to be abundantly clear from paragraphs 15, 17 and 18, that the Acting Industrial Magistrate was fully aware that the appellant did not know how it was that Mr Beneke was conducting his course. Indeed, it is tolerably plain from those paragraphs that the fault and/or blameworthiness with which the Acting Industrial Magistrate burdened the appellant was sourced in its lack of vigilance to ensure that it was informed about the content and conduct of courses conducted under its auspices. In my view the emphasis at paragraph 8 should not be placed upon the verb "allowed", but upon the phrase "through the activity of Mr Beneke". The criticism is that in circumstances in which it was the appellant who bore the absolute obligation at s. 28(3), Mr Beneke who was subject to the appellant's authority, had been permitted to develop a module within his course without scrutiny or oversight and had chosen to embrace an activity which, on the basis of the warning labels on the drums involved foolhardy exposure to extreme danger and led to a fatality in frightful circumstances. It is then contended that Acting Industrial Magistrate's criticism of the failure to observe the two advisory standards in relation to the plasma arc cutting torch in the agricultural course. It is argued that the real point was that in the case of the engineering course in which the plasma arc cutting torch was intended to be used, there had been rigorous observance of the risk management advisory standard and the plant advisory standard. The submission is that where obligations had been recognised they had been observed, and that undue blame should not be attached to omissions arising out of ignorance. In my view the Acting Industrial Magistrate's observations about the advisory standards were limited to the agricultural course. There is nothing to suggest that His Honour was under any misapprehension about the high standards pursued in the case of the engineering course. As emphasised above, there can be no suggestion that the Acting Industrial Magistrate was unaware that the appellant's problems arose out of ignorance. It was in the inaction of the appellant, a school, in drifting on in ignorance of the risks to which its students were being exposed, which largely caused the Acting Industrial Magistrate to arbitrate blameworthiness and/or fault. I accept that the Acting Industrial Magistrate was in error in describing Mr Toohey as Mr Beneke's supervisor. He was not Mr Beneke's supervisor. Mr Beneke did not have a supervisor other than the Principal himself. That was part of the problem. There is nothing in the reasoning of the Acting Industrial Magistrate to suggest that the error about the relationship between Messrs Beneke and Toohey led to any inflation of the quantum of the fine. In my view, the Acting Industrial Magistrate was not labouring under any misapprehension as to the facts. There is no substance in the submission that the Acting Industrial Magistrate misapplied the decision in Neilands v Darryl O'Neil (2001) 168 QGIG 134. As emphasised in Otto v Bosgrove Pastoral Co Pty Ltd (2002) 170 QGIG 143, and Marfleet and Lindsay Myers Pty Ltd (2006) 183 QGIG 240, blameworthiness is a relevant factor on sentence, compare s. 9(2)(b) of the Penalties and Sentences Act 1992. But foreseeability is not the sole measure of blameworthiness. Granted that as in Neilands v Darryl O'Neil, op. cit., Mr Beneke's activities were entirely unexpected, the additional factor is that the appellant as a school had a responsibility for the pupils within its care. The failure to recognise and discharge that obligation attracts consideration of deterrence, compare s. 9(1)(c) and denunciation, compare s. 9(1)(d). And the penalties imposed under the Workplace Health and Safety Act 1995 must underpin a system of absolute obligation established by that Act, not a system of fault-based liability. In my view the analogous case to Neilands v Darryl O'Neil, op. cit., would be the case in which Mr Beneke, working upon a drum with a plasma arc cutter otherwise that in the presence of students, injured himself. -- 2 of 3 -- 3 In all the circumstances, I find that $80,000 is not manifestly excessive. It is less than a quarter of the maximum penalty available. It is true that in Lutheran Church of Australia - Queensland District v Newman (2002) 170 QGIG 247, a challenge to a fine of $80,000 in a case in which there had not been a timely plea of guilty, was unsuccessful. But the challenge was mounted by the defendant at first instance with a view to reducing the fine. The complainant at first instance did not seek to attack the fine as inadequate. And at the time the maximum penalty available to an Industrial Magistrate was $300,000. The discretion about penalties vested in the Industrial Magistrates Court, not the Industrial Court. In my view there is nothing to suggest that the discretion miscarried. I dismiss the appeal. I reserve the all questions as to costs. Dated 5 October 2006. D.R. HALL, President. Released: 5 October 2006 Appearances: Mr A.J. Glynn SC instructed by Sparke Helmore Solicitors for the appellant. Mr M. Byrne QC directly instructed by the Division of Workplace Health and Safety for the respondent. Government Printer, Queensland The State of Queensland 2006. -- 3 of 3 --