Chugg v Pacific Dunlop Ltd [1990] HCA 41

High Court of Australia Brennan, Deane, Dawson, Toohey and Gaudron JJ. Chugg v Pacific Dunlop Ltd [1990] HCA 41

ORDER Chugg v. Pacific Dunlop Ltd. Special leave to appeal revoked save as to the question of onus of proof. Appeal dismissed. Appellant to pay the respondent's costs. Pacific Dunlop Ltd. v. Chugg. Special leave to appeal revoked. Appeal struck out. Appellant to pay the respondent's costs.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 3 Brennan J.

Although I am in general agreement with the judgment of Dawson, Toohey and Gaudron JJ., I would identify the two considerations which seem to me to dictate the construction which their Honours place on s. 21(1) of the Occupational Health and Safety Act 1985 Vict. ("the Act"). First, the words "so far as is practicable" modify the verbs "provide and maintain" which create the obligation. As a matter of grammar the obligation imposed by s. 21(1) is not an absolute obligation. Secondly, as a matter of substance the elements of the supposed qualification relate to elements of the same character as the elements of the obligation, namely, the taking of precautions required to make a working environment safe and without risks to health. The words "so far as is practicable" prescribe the measure of the precautions to be taken; they do not prescribe a qualification of a character different from the character of the elements of the obligation: see per Fullagar J. in Barritt v. Baker [1] .

1. [1948] V.L.R. 491, at p. 495.

If the result of the informant's appeal depended on the construction of sub-s. (1) of s. 21, these considerations would lead to a dismissal of the appeal. Reference to the informations, however, shows that the informant relied on par. (a) of s. 21(2) to establish a contravention of s. 21(1) and alleged facts which were intended to satisfy that paragraph. Although sub-s. (1) is the sub-section which creates the obligation and, in conjunction with s. 47(1), creates the relevant offence, sub-s. (2) prescribes a series of duties a failure to fulfil any one of which amounts, by force of that sub-section, to a contravention of sub-s. (1). Therefore the only issues for determination on the hearing of the informations were whether the defendant had failed, in the respects alleged, "to provide and maintain plant and systems of work that are so far as is practicable safe and without risks to health". The words "so far as is practicable" in par. (a) of sub-s. (2) are an integral part of the clause which qualifies "plant and systems of work". To treat those words in that clause as words of exception would be to place a forced and unnatural construction on the clause. In the courts below, attention was focused on the modifying phrase in sub-s. (1) rather than on the corresponding words in sub-s. (2)(a). Although, in my view, that approach misconceived the true issue for determination, it led to no error in the result. I would therefore dismiss the appeal.