Central Scaffolding & Rigging Services Pty Ltd v Verrall [2004] ICQ 3 (2004) 175 QGIG 578

578 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 February, 2004 ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND Workplace Health and Safety Act 1995 – s. 164(3) – appeal against decision of industrial magistrate Central Scaffolding & Rigging Services Pty Ltd AND Glenn Shane Verrall (No. C106 of 2003) PRESIDENT HALL 2 February 2004 DECISION On 5 February 2003 Glenn Shane Verrall, a Public Officer within the meaning of s. 142A of the Justices Act 1886 and an inspector duly appointed under the Workplace Health and Safety Act 1995, made a complaint that – “…on 6 February 2002, at Gibson Island in the Magistrates Court District of Brisbane Central, CENTRAL SCAFFOLDING & RIGGING SERVICES PTY LTD being a person on whom a workplace health and safety obligation prescribed by section 28(1) of the Workplace Health and Safety Act 1995 is imposed, did fail to discharge that obligation contrary to section 24(1) of the Workplace Health and Safety Act 1995 in that being an employer the said CENTRAL SCAFFOLDING & RIGGING SERVICES PTY LTD did fail to ensure the workplace health and safety of each of the employer’s workers at work.”. Particulars were given, viz. “Workplace Incitec Ltd, Paringa Road, Gibson Island Worker Perry Brian Mitchell The risk is the risk of death or injury to workers, including the risk of injury from falls from heights to Perry Brian Mitchell. The source of the risk emanates from working at heights on cooling tower number 3.”. A circumstance of aggravation was averred, viz. that as a result of the failure to discharge the workplace health and safety obligation Perry Brian Mitchell sustained grievous bodily harm. Though the point was subsequently abandoned the appellant originally contended that the appeal was out of time. It is common ground that the limitation period is imposed by s. 165. The section provides that a proceeding for an offence against the Workplace Health and Safety Act 1995 must start “(a) within 1 year after the commission of the offence; or (b) within 6 months after the offence comes to the complainant’s knowledge.”. The contention of the appellant is that both limitations must be met and that the complaint was made long after the expiry of the 6 month period referred to at (b). The contention of the respondent is that it is sufficient for the complaint to be laid within one or other of the periods of limitation described at (a) and (b), and that the complaint was laid within the 12 month period at (a). The earlier s. 123 of the Workplace Health and Safety Act 1989 was in the following terms: “Time for commencement of proceedings 123. A prosecution for an offence against this Act shall be commenced at any time within one year after the matter of complaint arose or within six months after the matter of complaint comes to the knowledge of the Director, whichever period is the later to expire.”. If the matter stopped at that point there would be force in the argument that the omission of the words “whichever period is the later to expire” from the current s. 165 indicates that both limitation periods must be met. The submission, with respect, gives inadequate weight to the history of s. 165. In its original form, see Act No. 25 of 1995, paragraph (b) of s. 165 contained additional words. Originally, paragraph (b) was in the following terms – “(b) within 6 months after the offence comes to the complainant’s knowledge, but within 18 months after the commission of the offence.”. (emphasis added) The words emphasised were deleted by s. 57 of the Workplace Health and Safety Amendment Act 1997. As a matter of first impression one would have thought that the purpose was to ease the limitation period at (b) rather than to make limitation more rigorous. In any event regard may legitimately be had to the explanatory memorandum relating to the bill. Section 14B(1)(c) and (3)(e) of the Acts Interpretation Act 1954, expressly so declares. Amongst other things the explanatory memorandum observes: -- 1 of 2 -- 13 February, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 579 “Clause 56 omits the limitation of 18 months after the commission of an offence when a proceeding for an offence against the Act must start. The reason for this is that in some cases of injury and most cases of disease it is unlikely that the commission of an offence would become apparent until after a health effect has been experienced which in many circumstances would be longer than the existing limitation of 18 months.”. The explanatory memorandum goes on to give a myriad of examples in each of which the purpose of the legislature would be defeated if the construction urged by the appellant was accepted. In my view it is sufficient that, as he did, Mr Verrall made his complaint within the 12 month limitation period at (a). The point finally relied upon by the appellant is that the Magistrate should have ordered Mr Verrall to provide further and better particulars. For reasons which I developed in NQEA Australia Pty Ltd v. Dare (No. 2) (2004) 175 QGIG 17, I doubt that s. 164(3) of the Workplace Health and Safety Act 1995 authorises an appeal against an interlocutory decision of an Industrial Magistrate on such a matter. However, the point is a short one and it is convenient to the parties that I deal with it. The gravamen of the complaint appears at paragraphs 19 to 23 of the appellant’s written submissions: “19. In light of the above, it is submitted that it is clear that at the very least particulars should identify the very acts and/or omissions which the appellant is alleged to have perpetrated that constitute the offence charged, and to give the date, place and time upon which those acts or omissions occurred. 20. The Stipendiary Magistrate referred to the complaint and the particulars given in his decision. Although he made no comment to this effect, a simple perusal of the complaint indicates that no mention whatsoever is made of any acts and/or omissions alleged to have been perpetrated by the appellant. It gives the date being the 6th February, 2002; it gives a place, namely Gibson Island; and it alleges that the appellant failed to discharge its obligation under s.28(1) contrary to s.24(1) in it being an employer it failed to ensure the workplace health and safety of the each of the employer’s workers at work. 21. The particulars given are of the workplace, namely Incitec Limited; the worker, namely Perry Brian Mitchell; the particulars then go on to say ‘the risk is the risk of death or injury to workers, including the risk of injury from falls from heights to Perry Brian Mitchell’; and that ‘the source of the risk emanates from working at heights on cooling tower number 3.’. 22. Since the offence charged makes no mention of any risk, one might wonder what the relevance is of particulars being given as to the nature of the risk. 23. A person reading the complaint could only gather that Mitchell was working at a height (what height?) on a cooling tower and that there was a risk of injury if he fell. Nowhere is there any mention of what acts or omissions were done by the appellant to prevent or minimise this risk of injury.”. In my view the submission is incompatible with the structure of the Workplace Health and Safety Act 1995. As the complaint makes plain the offence is created at s. 24(1). Section 24(1) is the section which makes it an offence for a person upon whom a workplace health and safety obligation is imposed to fail to discharge the obligation. The relevant obligation, as the complaint makes plain, is the obligation imposed by s. 28(1). The obligation is the obligation of an employer to ensure the workplace health and safety of each of the employer’s workers at work. To understand when workplace health and safety is “ensured” one must go to s. 22(1) which provides: “22.(1) Workplace health and safety is ensured when persons are free from– (a) death, injury or illness caused by any workplace, workplace activities or specified high risk plant; and (b) risk of death, injury or illness created by any workplace, workplace activities or specified high risk plant.”. Here, the particulars nominate the workplace and the worker to which the complaint relates. The particulars go on to indicate that reliance is to be placed upon s. 22(1)(b) and to crisply identify both the risk to be relied upon at the trial and the source of the risk. I do not accept that the appellant is entitled to any further particulars. If the appellant wishes to make out a defence under s. 37 that is entirely a matter for the defendant. The respondent has no obligation to narrow the appellant’s task by e.g. nominating an advisory standard and limiting the burden cast on the appellant by s. 37 by particularising how it was that the appellant fell short of that standard. Doubtless, there will be cases, e.g. where a risk has not fructified, in which a complainant will rely on s. 26 rather than s. 22 to establish a failure to discharge an obligation. In such a case quite different particulars might be called for but that avails the appellant not at all. I may add that the Industrial Magistrate’s decision is entirely in accord with the decisions of this Court in Parr v. NQEA Australia Pty Ltd (2001) 167 QGIG 913 and Newman v. Holyoake Industries (Qld) Pty Ltd (2002) 171 QGIG 390 and Bow Park Pty Ltd v. Williams (2003) 174 QGIG 531. I dismiss the appeal. I reserve all questions as to costs. Dated 2 February 2004. D.R. HALL, President. Appearances: Mr K. Geraghty, instructed by Palella Humphries & Vernados, for the appellant. Mr M. Byrne QC, directly instructed by the Division of Workplace Health and Safety, for the respondent. -- 2 of 2 --