Division of Workplace Health and Safety v Ausmar Pty Ltd [1994] ICQ 5 (1994) 145 QGIG 625

624 QUEE SLAND GOVERNMENT INDUSTRIAL GAZETTE [ 18 M arch, 199 4 18 M arch, 1994 ) QUEENSLAND GOVERNMENT INDUSTRIAL GAZE TTE 625 ##/Ui##l######-#111######11#################11########### Q UEE NSLAND IN DUSTR IAL COUR 'I Industrial Relatio ns Act 1990 s. 96 - appeal from decision of in dustrial mag is t rate Div ision of Wo rkplace Hea hh and Sa1e1y AND Ausmar Pry Lid (No. ( 41 of 1993) JUST ICE MACKENZIE. PRESID ENT 25 Febru a ry 199 4 Appeal - Decision of Industrial Magistrate - W o1kplace Health and Safety Act 1989 -· Sec ti ons 6 and 10 - Practi cab le - SafP ty o( People - Accident and lnJury - Appeal Dismi ssed with Costs. RrPORT ON JUDGM(NT In giving his Judgment from lhe Bench on 25 February 1994 the Pres ident said:- ' -- 1 of 2 -- ...._ 626 QUEENSLA D GOVERNMENT lNDU STRI AL GAZETTE 118 M arch , 1994 "fhe appellant complainant appeals against the dismissal of the comp lainant under sectton 10 01 th e Workplc1ce Health c1nd Sdfel} Act 1989. The section obliges an employer to conduc.t his undertaking in ~uch a manner as to en sure that the hPalth and $.lfety of person~ not rn his employment w ho may be affected thereby arc- not exposed to risks ansmg lrom the conduct 01 his undertaking save whNe it is not pracucable for him to do so. 1 he word "practicabl e" is defined in section 6 of the Act. The question of practicability Is not 10 be considered a~ an abst ract exerci s<' and the iac10rs in sc<.tion 6 are re levant in deterrrnning what is practicable The iacts 01 the ca se are that a woman was ki lled in the course oi an operation v.h ich involved 'oading piles by means ol a crane on to a truck. The pile which wuck the deceased was being liited b) the crane and swung in such a way as to smke her. The particulars oi the offence wl're to the etfect that the area should have b(>en kept dear of people (luring t he operat ion. The ev idence before the lndustnal Magi5trdte was to the etlect that un11l shortlv before the pile was lift('(! the deceased was 10wards the rront or th e. vehu.le and out oi range. During the c.oursc of the operation. lor some reason wh ich Is not established, she moved into the location "here she was struck. o one connl.'cted with the ac t ual lif t, the crane oper.itor and the two dogmen, saw her movP mto that p0s1tion The deceased's husband gave evidence th at she had moved forward to the place where she was struc l.. upon inwuction~ of one 01 the dogmen but the Magistrate did not accept that any such 1nstruc11on had been given. There was also evidence that It was the pracuce of the experienced dogmen at l east to warn people who were m the way to move before a load was shi fted and there was evidence that the deceased had been warned on previous occasions to get out oi the way. The lndusui .al Magistrate sa id that he could not see that 1he d1>fendan1 company's servants did not e xe rcise such vigilance as wa~ practical. He expressed the opinion that the occurrence "a' a true accident v.h,ch did not reveal a failure on the pan 01 the de1endant 10 conduct its undertaking within the bounds of practic.ibility in a mar,ner to ensure that health and safety 01 persoM contemplated b} sectton 10 were not exposed 10 nsk He advcrtcd lo the n~'CC(~ily tor the Crown to provide guilt to the cnmin.il standard. The outline 01 argument ior tt>e appell ant whith was dcs1g11cd to address the 1.ictors se t out in section 6 v.as that the 1>1~agistra1e had erred m finding that the company's servants had exercised such vigilance a~ was practicable It was submi11ed that the undena iPg was clearly a dangerous one and the degree oi n sl.. wa~ real and appreciable. It was fu<1her submined that a practtcal person would be awJ re t hat those risks could r esu lt lrom the undertal..ing. It was iurther subm1ned that then• was an available way of pre..enttng inJury by en,uring tha t people were not 10 the area ot movement oi the load It was subm tted that hc1d the dogman stood on the other side ot th e pile he woulo have observed the decedsed person moving 11110 the dangerous location and bPen able to ensure 1tiat ~he rf"mO'vt'd her~lt trom the Jrea beiorf' the p le was liited. l he or,11 submissions touched upon some of these i actors, more particul arly Mr Crrle reic11ed to thE' evidence of lnspectot Wicks who cxpre~sed the opinion that thl' oogman should have been posiH>ned on the opposite iro'TI where he v. .is so that he couid ,ee ii anyone came into the area 01 danger. On the other hand. 1he evidence oi the dogman was that he c..ould recall seeing the deceased at the rront ol the true at the time when the load was being rl'sl ung and in effect had not repos1tion<'d himseh so that he cou ld v e\, the area through \\ hteh the pile wou ld sv. tng. I lowcvcr, he con~id1'r!'d that he w.is performing his 10b in an approp11a1e manr-cr. There was nothing compelling 1n the evidence to su~est that ordinary human experience that when one is concentrating on a particular task, one does not necessarily notice e, erything else that is happening contemporaneously did not apply 1n thi s case. The learned Industrial Mag is trate formed the view th ot on t he evidence beiore him there had not been a failure on the part o' the defendant to conduct rts undenal..ing within the bounds oi practtcability in a manner to ensure that health and safe ty of person s contemplated by section 10 were not e,.,posed 10 risk. He held that he was nol convinced that the defendant •~ se rvants did not exercise ~uch vigilance as was practical Having com1dered the record oi e"dence betore hil"l and h.iving regard to his advantage in having been ab le to obsc1ve the witnesses in the atmosphere 01 the hearing, I do not tind mysell in disagreement with the decision reached by him. Accord,ngl) the appeal is d ismissed wi th costs. It follows from what I have sa id that beca use I have found that the matter should be di sm issed on the mer11s, 11 , unnecessal)' 10 consider the preliminary point relattng to late service of the application upon the respondent The costs '"II be lil,ed m the sum oi $2.600 •• Dated this t111,enty-fifth day 01 February, 1994. By the Court. !L.S.J M .). CALL(N, Industrial Regrstra r. Appea,ances:- Mr A. Girle {of Crown Law) tor Division oi Workplace Health and Sai ecy . M r 'vl.T. O 'S ullivan (instructed by CIE'ary , Hoare. Hart & Grantl ior Ausmar Pt y Ltd. Operative Date: N/A Report on Judgment - Division o! Worl..place Health and Satety and Ausmar Pty Ltd Released 8 March 1994 #########1################################## ###### ## Section 10 undoub1rd',y ras ts .i high onus on c1 person conducting <1n under1,1king 10 C'nsurc the satety 01 people 1rom dangers ocrurring <luring the condutl of the undertaking. Howe~cr, the uncon1radicted evidence m this ca,e i s that the deceased person, having been In a place oi safety and h,w ng been pre\lously "arned to sta) clear, moved nto the da nger are.i wh ile the crane ma n Jnd t he rlogm~n were concentrating upon the l,11 N o one had any rea5on 10 believe that she would he in the area of d ang er having regard to the position where sh e was "hen their auenuon became conrentrated oo the Ith l here was no specific questtoning of the dogman to suggest that had he been on the other srde 01 the load he would necessarily have seen the deceased entering the dangrr zone• 18 M arch, 1994] (JUEF:NS LA D GOVERNM EN T LNDU ST RIAL G AZ ETTE 627 -- 2 of 2 --