Cuffe v Gay Constructions Pty Ltd [2006] ICQ 14 (2006) 633 QGIG 633

[Extract from Queensland Government Industrial Gazette, dated 13 April, 2006, Vol. 181, No .15, page 633-636] INDUSTRIAL COURT OF QUEENSLAND Workplace Health and Safety Act 1995 - s. 164(3) - appeal against decision of industrial magistrate Sean Cuffe AND Gay Constructions Pty Ltd (C/2006/3) PRESIDENT HALL 30 March 2006 DECISION The Respondent was charged with a breach of s. 24 of the Workplace Health and Safety Act 1995. The obligation which the Respondent was said not to have discharged was its obligation as an employer under s. 24 to ensure the workplace health and safety of each of the Respondent's workers at work. A circumstance of aggravation was alleged. It was alleged that a worker named in the particulars had suffered grievous bodily harm. The Respondent admitted: (a) that on the date nominated in the complaint it was the employer within the meaning of the Act and that the named worker was indeed a worker within the meaning of the Act; (b) that in the course of carrying out the work identified in the particulars the worker was using plant, viz. an elevating work platform being a Genie GS-3268RT; and (c) that the worker did suffer injuries amounting in law to grievous bodily harm. The prosecution failed. It failed because the Industrial Magistrate held that each of the defences at s. 37(1)(b)(2) had been made out. To understand the issues on the appeal it is necessary to elaborate upon the facts because this is a case which is all about the facts, and about the inferences which may legitimately be drawn from the facts. Since the Respondent accepts the outline of the facts at paragraphs 8 to 23 of the Appellant's outline of submissions, I am content to adopt those paragraphs. Facts "8. The Respondent is a corporation under the Corporations Law. 9. It operates a business that includes metal fabrication and operates from premises located at 360 Lytton Road, Morningside in the State of Queensland. 10. The Respondent was engaged by WATPAC Australia Pty Ltd to supply and erect some of the structural steel for a construction project known as the MacArthur Central Building Project. This project was located in the Brisbane Central Business District. 11. It is common ground that the Respondent was an employer under the Act at the material times and as such, had relevant obligations under Division 2 of Part 3 of the Act. 12. The Respondent employed Mr Stephen Garris as a leading hand/boilermaker and on-site supervisor at the material times. It also employed Mr Brendan Pike as project manager. 13. The Respondent sub-contracted most of the erection work on the project to a trading entity known as M&B Rigging. This entity supplied a site specific safety plan for work at the site. 14. On 4 November 2002, the works had been completed to the stage of practical completion and the Centre commenced trading. On 7 November 2002, the Respondent was tasked to position and bolt a steel beam above the entrance "rolladoor" to a carpark ramp on the site located off Elizabeth Street. These works were part of the contractual variations and extras on the job. 15. The task of installing the beam was not specifically referred to in the Respondent's generic safety plan. 16. On the morning of 7 November 2002, the Respondent hired and took possession of an item of plant known as a "Genie" scissor lift from an entity trading as General Rentals. 17. Mr Garris drove the plant down the carpark ramp to a loading dock. 18. Whilst Mr Garris was away from the site getting some bolts, two workers drove the scissor lift into position on a sloping surface but could not get the outriggers/rams/feet down. The angle of the sloping surface was approximately 7 degrees. They were also unable to find the operators manual. -- 1 of 4 -- 2 19. On his return to the plant, Mr Garris experienced the same operating problems with it. He then contacted Mr Adam Dawson who was the sales/Operations manager at General Rentals. He obtained instructions over his mobile phone. 20. Mr Garris was concerned about gouging the newly painted surface on the sloping ramp. He experimented with one of the rear outriggers by lowering it first. This outrigger left no marks on the surface, so he lowered both outriggers until the machine was level on the sloping surface. 21. He then lowered one of the front feet and just as it took the weight off the side wheel, the machine skipped once and started sliding slowly backwards hopping through indentations/crosscuts in the concrete. Expecting that the brakes on the front wheels would be applied, Mr Garris attempted to lower the front foot but had difficulty using the controls due to jolting vibrations. 22. Eventually Mr Garris was able to raise the front outrigger/foot. He was "devastated" when he saw that the wheel that had just been lowered was turning. The scissor lift picked up speed and Mr Garris jumped backwards over the platform basket to the concrete ramp below. 23. It is common ground that the injuries sustained by Mr Garris amount in law to grievous bodily harm.". It is also useful to reproduce s. 37(1)(b) and (2): "(1) It is a defence ....for the person to prove - (b) if an advisory standard or industry code of practice has been made stating a way or ways to manage exposure to a risk - (i) that the person adopted and followed a stated way to prevent the contravention; or (ii) that the person adopted and followed another way that managed exposure to the risk and took reasonable precautions and exercised proper diligence to prevent the contravention; (2) Also, it is a defence ....for the person to prove that the commission of the offence was due to causes over which the person had no control. The Industrial Magistrate found that for the purposes of s. 37(1)(b) the relevant advisory standards were the Workplace Health and Safety Risk Management Advisory Standard 2000 and the Workplace Health and Safety Plant Advisory Standard 2000. That finding is not attacked on the appeal. In Lutheran Church of Australia (Qld) v Newman (2002) 170 QGIG 247 at 248, this Court explained the operation of the Workplace Health and Safety Risk Management Advisory Standard 2000 as follows: "...It may be admitted that the Workplace Heath and Safety Risk Management Advisory Standard 2000 is a generic risk management document concerned with establishing a process for identifying hazards at workplaces and how to manage exposure to the risks associated with those hazards. I am, however, unable to accept the submission that within the meaning of s. 26(3)(a) the occupant of the workplace discharges his workplace health and safety obligation by making a genuine (not sham) attempt to implement the processes described in the Standard. The essential five steps required by the Standard are: 1. Identify hazards 2. Assess risks that may result because of the hazards 3. Decide on control measures to prevent or minimise the level of the risks 4. Implement control measures 5. Monitor and review the effectiveness of measures.". The essential five steps under the Standard are the very steps at s. 22(2)... ...If compliance with s. 22(2) does not excuse a person from an obligation to ensure workplace health and safety it is impossible in the absence of express language or necessary implication to read an advisory standard, made pursuant to s. 41 and given effect by s. 26(3), as elevating a genuine attempt to take the steps at s. 22(2) to a discharge of the obligation to ensure workplace health and safety... ...The true intention of the Workplace Health and Safety Risk Management Advisory Standard 2000 is that an employer or occupant of a workplace must take each of the five essential steps prescribed by the Standard. So to construe the Standard is not to repeal s. 27. Section 27 recognises that its field of coverage may be eaten away by regulations, ministerial notices, advisory standards and industry codes of practice.". Here, as in The Lutheran Church of Australia (Qld) v Newman (2002) 170 QGIG 247, the contention is that the Respondent failed at the first hurdle; i.e. that the Respondent failed to identify the hazard. Senior counsel for the Appellant put it this way: -- 2 of 4 -- 3 "-- the risks and hazards were obvious. It was a sloping, painted surface; working on a machine which did not have brakes on two legs, for want of a better expression.". With respect, it seems to me that it was far from obvious that working from the particular machine on the particular specially painted slope was a hazard. As the Industrial Magistrate found, the machine had been safely used in installing fire sprinklers along the ramp in question. As counsel for the Respondent puts it - "-- the machine in question was used both up the ramp, down the ramp, across the ramp and in every possible way.". It seems to me that to develop the argument that the Respondent failed to identify a hazard, one really has to break the hazard said to be constituted by working on the particular machine on the particular ramp into the hazard's constituent parts. The relevant "constituent hazards" are: (a) the hazard arising out of the painting of the ramp with a paint other than a non-slip paint (after the fire sprinklers had been installed); and (b) the presence of brakes on only two legs of the vehicle rather than all four legs of the vehicle. The Industrial Magistrate found the answer to the use of the paint which was not non-slip paint in the indentations/cross cuts in the concrete referred to in paragraph 21 set out above. His Honour said: "-- the slipperiness was masked by the visible cross cuts. It was not an obvious hazard.". There was evidence to support that view. A gentleman who had been responsible for applying the paint gave evidence that a conscious decision had been made not to apply non-slip paint because the cuts in the concrete would suffice. Further, though with respect to the Industrial Magistrate, I am not sure that His Honour seized upon the point - the evidence did not support the proposition that the paint used created a hazard. The tests relied upon by the Appellant showed that, when wet, the paint proved slippery for pedestrians; they said nothing at all about whether it was slippery for pedestrians when dry (the incident happened on a dry day) and nothing at all about whether the paint would prove slippery for the particular machine that was being used. The presence of two brakes rather than four was not known to servants and agents of the Respondent, anyone on the site or to the lessor of the machine. I accept that knowledge that the machine was fitted with only two brakes was available within Australia. The knowledge was held by the National Service and Product Manager of the importer of the machine who had received training from the manufacturer in the United States. But that gentleman gave evidence of being surprised when, on attending the re-enactment of the incident, he observed the machine to slip. He experienced that surprise notwithstanding that he attended the re- enactment knowing of the allegation the machine had slipped. It was his evidence, that whilst he had not used the machine on the ramp in question, he had used the machine in comparable situations and that while "the grading was at the maximum spec of the machine, but technically, yes it was in - within range.". It was also the gentleman's evidence that after the incident, the operator's manual had been modified to add further instructions about the use of the machine on a slope, but the circumstances of there only being two brakes was still not mentioned. Whilst the Respondent might have tracked down the information about the brakes, it would have found the information cocooned in a further pinion about the safety of the machine on a slope of the type in question. Indeed I doubt that the product manager would have volunteered the information about the brakes. Whilst the case is not as strong as the case which succeeded in Stratford v Newman (2003) 173 QGIG 661, I am satisfied on the balance of probabilities that the "constituent hazard" was not identifiable. On a fair reading of the Industrial Magistrate's decision (putting aside blemishes in expression), that seems to have been His Honour's view. The construction of s. 37(2) has not been fully argued. Given that I accept that the Industrial Magistrate was correct in holding that the defence at s. 37(1)(b) had been made out, it is unnecessary to determine the issues about s. 37(2). I leave the construction of s. 37(2) to another day. For completeness I should say that senior counsel for the Appellant and counsel for the Respondent took the Court to a passage in the judgement of Petersen J in WorkCover Authority of New South Wales v. Dubavo Proprietary Limited [1995] NSW ICR 134 whereat His Honour said, inter alia: "The concept of failure by the employer involves necessarily a failure to take a step which the employer was able to take to avoid the relevant risk. Liability is not absolute in a sense that it must provide for the unknowable.". The passage clearly follows from the decision in Cullen v State Rail Authority (NSW) (1989) 31 IR 207. As appears from p. 209 of that report, the remarks are directed at a formulation of an employer's health and safety operations which define the employer to have contravened the employer's obligations if the employer "failed" to do certain things. Whilst I note that the complaint which gave rise to this matter asserted a breach of s. 28 by way of failing to discharge the obligation at s. 24, it may be that the complainant accepted a burden which he was not required to bear. In its current form, the Workplace Health and Safety Act 1995 is drawn in terms of positive obligation and makes no mention of "failure". It may be that on a proper construction notions of "failure" may be imported. It would be imprudent to take -- 3 of 4 -- 4 that step without full argument and I put aside the decision in WorkCover Authority of New South Wales v. Dubavo Proprietary Limited [1995] NSW ICR 134. I dismiss the appeal. I reserve all questions as to costs. Dated 30 March 2006. D. R. HALL, President. Released: 31 March 2006 Appearances: Mr M.J. Byrne QC and with him Mr G. Lee directly instructed by Workplace Health and Safety Queensland, for the Appellant. Mr S. Sapsford instructed by McInnes Wilson Lawyers, for the Respondent. Government Printer, Queensland The State of Queensland 2006. -- 4 of 4 --