Bow Park Pty Ltd v Williams; Williams v Bow Park Pty Ltd [2003] ICQ 46 (2003) 174 QGIG 531

531 Vol. 174 FRIDAY, 17 OCTOBER, 2003 No. 7 ########################################################################################################################## # INDUSTRIAL COURT OF QUEENSLAND Workplace Health and Safety Act – s. 164(3) – appeal against decision of industrial magistrate Bow Park Pty Ltd AND David Gordon Williams (No. C61 of 2003) David Gordon Williams AND Bow Park Pty Ltd (No. C62 of 2003) PRESIDENT HALL 7 October 2003 DECISION By a complaint made by David Gordon Williams on 23 September 2002, Bow Park Pty Ltd was charged that on 12 February 2002 at Cassillis Station, contrary to s. 24(1) of the Workplace Health and Safety Act 1995, it failed to discharge the obligation imposed upon it by s. 28(1) of the Act to ensure the workplace health and safety of each of its workers at work. After amendments allowed on 4 June 2003, the complaint was particularised as follows: “Failures: (1) BOW PARK PTY LTD did fail to manage or adequately manage workplace health and safety in relation to workers dismantling plant, namely a windmill.”. By way of aggravation it was alleged that as a consequence of the breach of obligation Christopher Adam Brakels sustained fatal injuries. Bow Park Pty Ltd entered a plea of not guilty. In due course Bow Park Pty Ltd was convicted. No conviction was recorded. A fine of $30,000 was imposed. Bow Park Pty Ltd appeals against the conviction. The complainant appeals against the quantum of the fine. The appeals were heard sequentially on the same day. It is appropriate to go first to the appeal against conviction. -- 1 of 4 -- 532 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 17 October, 2003 Both before the Industrial Magistrate and on the appeal counsel for Bow Park Pty Ltd has complained about the particulars. Counsel correctly identifies that by s. 26(3) of the Act where an advisory standard or an industry code of practice states a way of managing exposure to a risk, a person may discharge that person’s workplace health and safety obligation only by – (a) adopting and following a stated way that manages exposure to the risk; or (b) adopting and following another way that gives the same level of protection against the risk. The complainant having contended that the Industry Code of Practice in Relation to Rural Plant and the Risk Management Advisory Standard 2000 were relevant to the activities being engaged in at the material time, counsel for Bow Park Pty Ltd contends that the defendant should have been appraised of that circumstance well before trial, given particulars of the passages in the (quite substantial) documents relied upon and informed of what it was that the defendant was said to have failed to do which it should have done. I regret that I am unable to accept the submission as being consistent with the scheme of the Workplace Health and Safety Act 1995. (The references which follow are references to the Workplace Health and Safety Act 1995 in the form which it took prior to the amendments brought about by Act No. 27 of 2003. It is common ground that it is the earlier version of the Act which is relevant on the current appeals.) Section 24(1) makes plain that an offence may be committed though neither death, nor grievous bodily harm, nor bodily harm was caused. Batley v. S. Lowe and Sons (Tully) Pty Ltd (2003) 174 QGIG 179 is an example of such a case. However, the circumstance that death, grievous bodily harm or bodily harm flows from a breach of the Act is not relevant merely as a circumstance of aggravation inflating the maximum penalty. The circumstance that death, grievous bodily harm or bodily harm has occurred may be used in an evidentiary way to prove the breach of the obligation which is made an offence by s. 24(1). As noted, the obligation which Bow Park Pty Ltd was said not to have performed was that at s. 28(1) which provides: “An employer has an obligation to ensure the workplace health and safety of each of the employer’s workers at work.”. Although there is no definition of “ensured”, the Act does identify the circumstances in which it is possible to say that workplace health and safety “is ensured”. Section 22(1) 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.”. It seems to me that it follows from paragraph (a) that where (as here) death occurred, one could not say of Bow Park Pty Ltd’s workers that their workplace health and safety “was ensured”. I should perhaps add that s. 9(1) of the earlier Workplace Health and Safety Act 1989 provided: “An employer who fails to ensure the health and safety at work of all the employer’s employees, except where it is not practicable for the employer to do so, commits an offence against this Act.”. On two occasions the Court of Appeal held that in that context “ensure” meant “make certain” or “make sure” and rejected a submission that a further exception should be read in to cover the case where harm to the employee was not reasonably foreseeable, see Hardy v. St. Vincent’s Hospital Toowoomba Ltd [2000] 2 QdR 19 at 22 and Mount Isa Mines Ltd v. Peachey [1998] QCA 400. I have been taken to nothing which suggests that “ensure” should be given any other meaning in s. 28(1) and, as indicated, s. 22(1) weighs heavily against any suggestion that liability is limited by foreseeability. Though the obligation cast by s. 28 is absolute, liability is not absolute. That is entirely understandable. Section 26(3) provides: “(3) If an advisory standard or industry code of practice states a way of managing exposure to a risk, a person discharges the person’s workplace health and safety obligation only by – (a) adopting and following a stated way that manages exposure to the risk; or (b) adopting and following another way that gives the same level of protection against the risk.”. It would be startling if an employer doing what s. 26(3)(a) requires an employer to do were to be found guilty of failing to ensure the workplace health and safety of the employer’s workers pursuant to s. 28(1) because death, grievous bodily harm or bodily harm had occurred. After all, if the employer had been “discovered” not to be discharging the obligation under s. 28(1) by a means described at s. 26(3) before the death, grievous bodily harm or bodily harm had occurred, the employer might have been prosecuted in breach of s. 24(1) on that ground. And so it is that s. 37(1)(b) provides a defence: “37.(1) It is a defence in a proceeding against a person for a contravention of an obligation imposed on the person under division 2 or 3 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 precaution and exercised proper diligence to prevent the contravention;”. But, by its express terms, the subsection does no more than arm a defendant with a defence. The complainant has no obligation to limit the burden cast upon the appellant by s. 37(1)(b) by delivering particulars nominating how it was that the respondent fell short of the advisory standard or code of practice, compare Parr v. NQEA Australia Pty Ltd (2001) 167 QGIG 913 at 914 and Newman v. Holyoake Industries (Qld) Pty Ltd (2002) 171 QGIG 390 at 390. I should also add that to the extent that the complainant was being asked to particularise “what chapter and verse of the standard/code allegedly applied” the complainant was being asked to particularise law rather than facts, compare Parr v. NQEA Australia Pty Ltd (2001) 167 QGIG 913 at 913. There was no prospect of Bow Park Pty Ltd marshalling up a defence under s. 37(1)(b)(i). The company had not set out to comply with either the Industry Code of Practice in Relation to Rural Plant or the Risk Management Advisory Standard 2000. Indeed, before the Industrial Magistrate it was contended that the Industry Code of Practice in Relation to Rural Plant had no application. Any compliance with either the code or the standard would have been entirely fortuitous. In any event, by affirmatively finding that Bow Park Pty Ltd failed to identify the “hazard” the Industrial Magistrate put s. 37(1)(b)(i) entirely to one side. -- 2 of 4 -- 17 October, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 533 The finding that Bow Park Pty Ltd failed to identify a hazard is challenged on the appeal. Bow Park Pty Ltd operated a cattle grazing enterprise on a property known as Cassillis Station, 600 kilometres south of Richmond. There was a large windmill at a bore on the station. Having formed the view that it had no further use for the windmill at that location, Bow Park Pty Ltd determined to dismantle and store the windmill. Rather than dismantle the windmill while it was in an upright position, Bow Park Pty Ltd determined to lay the windmill on the ground so that it might be dismantled. That was done. The windmill lay upon the ground resting on two of its legs and the end of the axle which passed through the windmill wheel and the gearbox. The wheel and sails were thus suspended off the ground. By 12 February 2002 the dismantling process had progressed to the stage where the tail, all of the rims, all of the fan blades and all but three of the blade frames had been removed. On that day, whilst the deceased (a jackaroo on the property) was seated on the ground to the side of the windmill gearbox, the gearbox fell on to his head causing immediate death. The Industrial Magistrate found that the gearbox was inherently a hazard. It was inherently a hazard because of its height, weight, the circumstance that it was in a vertical position and its mechanical characteristic. The mechanical characteristic which the Industrial Magistrate had in mind was that the gearbox was designed to swivel. That was its purpose. That was what it did. For Bow Park Pty Ltd it has been contended boldly that the finding that, positioned as it was, the gearbox was a hazard was unfounded. Reliance was placed on the evidence of Mr Keats, a director of Bow Park Pty Ltd. It is contended that Mr Keats gave evidence that once the gearbox was taken off the horizontal plane the rollers would lock. In fact, Mr Keats said that it was likely that the rollers would lock. Mr Keats, I should add, had no experience in dismantling a windmill on the ground and was not present at the station at any relevant time. There is no evidence that he directed anyone to check whether the rollers had locked. There is no evidence that anyone did check. At other points in his evidence Mr Keats expressed a concern that the tail might move if the gearbox swivelled, and a concern that the fan of the windmill should be so positioned so as to have a stabilising effect and minimise the risk of the gearbox collapsing. The manager of the station, Steven Otto Hall, who also had no experience in dismantling windmills on the ground, gave evidence that early on in the process he had walked upon the head and had not observed any movement. Mr Hall did not claim to have made further checks as the dismantling process progressed. The assessments which he made as work progressed were assessments about what to do next, not about hazard development. On the materials which I have rehearsed it seems to me that the Magistrate’s finding that there was a hazard which had not been identified was plainly open to His Worship. On an appeal by way of a rehearing there is no basis for going behind that decision. As I understand it Bow Park Pty Ltd relies on s. 27(3) rather than s. 37(1)(b)(ii). Section 27(3) provides: “However, the person discharges the workplace health and safety obligation for exposure to the risk only if the person takes reasonable precautions, and exercises proper diligence, to ensure the obligation is discharged.”. The contention is that Bow Park Pty Ltd did take reasonable precautions and exercise proper diligence to ensure that the obligation was discharged. The short answer is that by s. 27(1) the defence has no application where there is “an advisory standard or industry code of practice stating a way to manage the risk”. Because the matter is a criminal one I have in any event considered s. 37(1)(b)(ii). Section 37(1)(b)(ii) is not without its difficulties. One might have thought that it would relate back to s. 26(3)(b) and require “another way that gives the same level of protection against the risk”. However, s. 37(1)(b)(ii) does not so provide and, in the absence of argument and in a criminal matter, I am not disposed to read in those words. That being said, in this case the defendant had not “adopted and followed another way that managed exposure to the risk”. There was nothing systematic or planned in what occurred. Officers and employees at Bow Park Pty Ltd, all of whom were entirely uninstructed and inexperienced in dismantling a windmill on the ground, simply went about dismantling the windmill in an uncoordinated and spasmodic way. Reasonable care and diligence is not sufficient. That is required by the second limb of s. 37(1)(b)(ii), which must add something to the first limb. In my view the decision of the Industrial Magistrate to convict cannot be faulted and the appeal against conviction is dismissed. I turn now to the appeal against the quantum of the fine. It is unnecessary to rehearse the whole of the authorities and the literature bearing upon the circumstances in which it is proper for an appellate court to go behind the presumption that a court of first instance had determined the matter correctly, and interfere with a sentence imposed in the exercise of a discretion. It is sufficient to accept the submission of counsel for Bow Park Pty Ltd that the general principle is well encapsulated in the well known passage in House v. The King (1936) 55 CLR 499 at 504 to 505 where Dixon, Evatt and McTiernan JJ said: “It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the (sentencing) discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion ion substitution for his … if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.”. Here, it is contended that the Industrial Magistrate erred in failing to consider the matter of deterrence because: “I note that in this case that what actually caused the mill head to fall has not been able to be determined.”. I accept the submission that the Industrial Magistrate erred in considering whether a deterrent sentence was necessary to ensure that the precise course of events did not reoccur. The gravamen of the complaint against the defendant was the failure to ascertain whether there were relevant advisory standards or codes of practice and to implement those advisory standards and codes in circumstances in which no equally efficacious method of managing workplace health and safety was in place. It is in my view a primary purpose of the sentencing process under s. 24(1) to set penalties for breach at a level which will compel attention to workplace health and safety issues and ensure that workers (and others) are not exposed to risk of bodily injury and injury to health at the workplace, compare Alcatel Australia Ltd v. WorkCover Authority of New South Wales (1996) 70 IR 99 at 106. I do not, however, accept the submission of counsel for the complainant that Industrial Magistrates and this Court should sentence on the basis of prevalence. I accept that a sentencing Judge may be aware of prevalence “of his own experience”, compare R. v. Ryan and Vosmaer, ex parte The Attorney-General [1989] 1 QdR 188 at 193 per Dowsett J. However, the limited range of cases which come before this Court and before particular Industrial Magistrates makes it impossible to comment on the prevalence of the offence of failing to observe advisory standard/codes or implement alternative means of managing workplace health and safety. To justify a sentence on the basis of prevalence, it would be necessary for evidence to be led. Further, an invitation to sentence on the basis of prevalence sometimes suggests the imposition of a sentence beyond that which would otherwise be thought of as precautionate to the objective gravity of the offence. As a matter of general principle such an approach should be avoided; compare Veen v. The Queen [No. 2] (1988) 164 CLR 465 at 472 and R. v. Aston (No. 2) [1991] 1 QdR 375 at 381 per Cooper J. Additionally, given the broadband of sentence made available by s. 24(1) I remain to be satisfied that deterrence may not be achieved by sentences which are proportionate to the objective gravity of the offence. The truth is that most of the fines ultimately imposed in proceedings under the Workplace Health and Safety Act 1995 are well below the fine appropriate to the gravity of the offence. There is little recidivism and typically (as here) there are significant mitigating factors. Additionally, though s. 181B of the Penalties and Sentences Act 1992 requires the application of the multiplier of 5 where a defendant is a corporation, in many cases it is necessary to -- 3 of 4 -- 534 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 17 October, 2003 moderate the otherwise appropriate sentence in order that generalised notions of deterrence and protection of the workforce do not degenerate into oppression. I doubt that a special case for going beyond a fine based on the objective gravity of the offence may be made out. The second identifiable error is said to be that the Industrial Magistrate failed to master the decision in Short v. Lockshire Pty Ltd (2000) 165 QGIG 521. In the course of the decision on sentence at first instance, His Worship said: “But I do consider the circumstances of this case to be somewhat less serious overall than that in the Lockshear (sic) case.”. I entirely disagree with that proposition. In Lockshire’s case the defendant had taken meritorious steps in identifying hazards and addressing risks. The deficiency lay in inadequate supervision of a worker who had deliberately disobeyed an established system of work and in so doing had placed himself and another worker at risk. In this case the defendant did not identify the hazard. The defendant failed at the very first hurdle. It is not as the defendant would have it a case of being penalised for failing to identify the unidentifiable. If there was no hazard to be identified, the appeal against conviction would have been allowed, compare Stratford v. Newman (2003) 173 QGIG 661. The hazard was entirely identifiable. What made the gearbox a hazard was the danger that the gearbox might do that which it was designed to do. The case is very close to Lutheran Church of Australia – Queensland District v. Newman (2002) 170 QGIG 247. It may be conceded that in that case the hazard was visually obvious whereas in this case one needed to understand something about the gearbox (as on all of the evidence Mr Keats certainly did). On the other hand in that case the defendant had made the effort of organising a workplace health and safety audit by “experts” who did not find the hazard. Both defendants were first defendants. In both cases there was remorse. In neither case was there a timely plea of guilty. (That is not a matter of aggravation. I merely notice the absence of a mitigating factor.) Given that before the Industrial Magistrate the complainant did not seek a fine in excess of $60,000, it seems to me that $60,000 (the fine in the Lutheran Church case) is the appropriate fine to impose. Having regard to the scale of Bow Park Pty Ltd’s operations, it conducts three substantial grazing enterprises, I am not disposed to moderate the fine further to allow for impecuniosity. It should be borne in mind that the fine in Lutheran Church of Australia – Queensland District v. Newman (2002) 170 QGIG 247 was set in the face of a submission that it would be paid from funds available to a school community rather than from profits. I allow the appeal against sentence. I set aside the order of the Industrial Magistrate that Bow Park Pty Ltd pay a fine of $30,000. In lieu thereof I order that Bow Park Pty Ltd pay a fine of $60,000. In default of payment levy and distress will apply. I reserve all questions of costs. Dated 7 October 2003. D.R. HALL, President. Released: 7 October 2003 Appearances: Mr C.A. White, instructed by Roberts Nehmer McKee, Solicitors, for Bow Park Pty Ltd. Mr S. Habermann, directly instructed, by Workplace Health and Safety Legal and Prosecution Services. -- 4 of 4 --