District Court New South Wales Medium Neutral Citation: Safe Work NSW v Wagga Motors Pty Ltd [2018] NSWDC 242 Hearing dates: 13 April 2018 Date of orders: 23 April 2018 Decision date: 23 April 2018 Jurisdiction: Criminal Before: Scotting DCJ Decision: I find that Mr Jenkins was an "other person" referred to in section 19(2) of the Act. Catchwords: CRIMINAL LAW – work health and safety – allegation of exposing employee to risk of death or serious injury – elements of the charge PROCEDURAL – Notice of Motion dismiss or stay proceedings STATUTORY INTERPRETATION – intent of legislators – content of elements of charge – statutory provision – meaning behind phrase – comparison to former legislative scheme – use of extrinsic materials WORDS AND PHRASES – ordinary meaning – intent – scope of duty of employer Legislation Cited: Interpretation Act 1987 ss. 33, 34 Occupational Health and Safety Act 1983 s.16 Occupational Health and Safety Act 2000 s.8 Work Health and Safety Act 2011 ss. 3, 7, 14, 15, 16, 19(1),19(2), 19(3), 20, 21, 22, 23, 24, 25, 26, 28, 29 Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 Boland v Safe is Safe Pty Ltd and Munro [2017] SAIRC 17 Bulga Underground Operations v Nash [2016] NSWCCA 37 Certain Lloyd's Underwriters v Cross (2012) 87 ALJR 131 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Board of Trustees of the Science Museum (1993) 1 WLR 1171 Re Bolton; Ex Parte Beane (1987) 162 CLR 514 Royall v The Queen (1991) 172 CLR 378 S Kidman & Co Ltd v Dr John Lowndes CM and Director of Public Prosecutions (NT) [2016] NTCA 5 SafeWork New South Wales v Rawson Homes Pty Ltd [2016] NSWDC 237 Taylor v Owners of Strata Plan 11564 (2014) 253 CLR 531 Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94 Category: Procedural and other rulings Parties: Safe Work NSW (Prosecutor/ Respondent) Wagga Motors Pty Ltd (Defendant/ Applicant) Representation: Counsel: Mr B Docking (Prosecutor/ Respondent) Mr I Roberts SC with Mr J Mack (Defendant/ Applicant) File Number(s): 2017/00271161 Publication restriction: None Judgment 1. Wagga Motors Pty Ltd (the defendant) has been charged with an offence that as a person who had a health and safety duty under section 19(2) Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed David Jenkins to a risk of death or serious injury contrary to section 32 of the Act. 2. The defendant seeks an order dismissing the charge, or permanently staying it, on the basis that on a proper construction of the Act, Mr Jenkins was not an "other person" referred to in section 19(2). Facts 1. Mr Jenkins was a worker engaged at a horse stud in Mangoplah, operated by James Triggs. [1] 2. On 15 December 2015, Mr Triggs took a 1989 Mitsubishi Horse Float (the truck) to the defendant's premises in Wagga Wagga for the purpose of having it repaired, including the repair of an oil leak in the hydraulic tail gate. During the course of the repair, the oil level in the hydraulic system became low, creating a risk that when the locks on the tail gate were released that it could fall to the ground. The operation of the tail gate was not tested by the defendant before returning the truck to Mr Triggs. 3. On 22 December 2015 the truck was returned to Mr Triggs and he drove it to Mangoplah. 4. On the morning of 23 December 2015, Mr Jenkins was required to weld a ladder on the truck before removing the partitions from inside it. At about 1.50pm Mr Jenkins was found deceased, trapped under the tail gate of the truck that had apparently fallen on him. The relevant principles of statutory construction 1. Statutory construction begins with a consideration of the language used. Its meaning may require consideration in context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 at [47]. 2. Determination of the purpose of a statute or of a particular provision may be based not only on an express statement of purpose in the statute itself but also by inference from its text and structure and where appropriate, by reference to extrinsic materials. However, this process does not involve a search for what the legislature had in mind: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [78] and Certain Lloyd's Underwriters v Cross (2012) 87 ALJR 131 at [23]-[26]. 3. The question of whether a court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills gaps disclosed in legislation or makes an insertion which is too big or too much at variance with the language used by the legislature. Lord Diplock's three conditions [in Wentworth Securities Ltd v Jones] should be considered before reading a provision as if it contained additional words and the additional words must be consistent with the wording of the provision: Taylor v Owners of Strata Plan 11564 (2014) 253 CLR 531 at [38]-[39]. 4. Section 33 Interpretation Act 1987 provides that the interpretation of a provision that would promote the purpose or object underlying the Act shall be preferred to a construction that would not do so. 5. Extrinsic materials can be used as an aid to construction, but they are not a substitute for the language considered in context and cannot displace the meaning of the text: Re Bolton; Ex Parte Beane (1987) 162 CLR 514 at 518, Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39] and section 34 Interpretation Act 1987. The relevant provisions of the Act [2] 1. The long title of the Act is "an Act to secure the health, safety and welfare of persons at work". 2. Section 3 of the Act relevantly provides: 1. The main object of the Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by: 1. protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and' … 2. (h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction. 1. In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable. 1. A person is a "worker" if the person carries out work in any capacity for a person conducting a business or undertaking, including work as an employee, a contractor or subcontractor or an employee of a contractor or subcontractor: section 7 of the Act. 2. A health and safety duty is owed to "workers" as provided for by section 19(1) of the Act that provides: 1. (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person, and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. 1. A health and safety duty is owed to "other persons" as provided for by section 19(2) of the Act that provides: (2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. 1. It was common ground that the term "other persons" when used in section 19(2) is a reference to persons other than "workers" who are provided for by section 19(1): SafeWork New South Wales v Rawson Homes Pty Ltd [2016] NSWDC 237 and S Kidman & Co Ltd v Dr John Lowndes CM and Director of Public Prosecutions (NT) [2016] NTCA 5 at [62]. 2. Section 19(3) of the Act provides: (3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable: (a) the provision and maintenance of a work environment without risks to health and safety, and (b) the provision and maintenance of safe plant and structures, and (c) the provision and maintenance of safe systems of work, and (d) the safe use, handling and storage of plant, structures and substances, and (e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including access to those facilities, and (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and (g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking. [3] 1. A "workplace" is defined by section 8 of the Act as a place where work is carried out for a business or undertaking. A "place" includes a vehicle or other mobile structure. 2. Section 20 of the Act provides that a person with management or control of a workplace owes a health and safety duty to ensure, so far as is reasonably practicable that the workplace and the means of entering and exiting it and anything arising from the workplace are without risks to the health and safety of any person. 3. Section 21 of the Act provides that a person with management or control of fixtures, fittings or plant at a workplace owes a health and safety duty to ensure, so far as is reasonably practicable that the fixtures, fittings and plant are without risks to the health and safety of any person. 4. Section 22 the Act provides that a designer who conducts a business or undertaking designing plant, a substance or a structure that is used or could reasonably be expected to be used at a workplace, owes a health and safety duty to ensure so far is reasonably practicable that the plant, substance or structure is designed to be without risks to the health and safety of any persons; 1. at a workplace; 2. who handle the substance at a workplace; 3. who store the plant or substance at a workplace; 4. who construct the structure at a workplace; 5. who carry out any reasonably foreseeable activity at a workplace in relation to the plant, substance or structure; for example, inspection, cleaning, maintenance or repair; 6. who are at or in the vicinity of a workplace and are exposed to the plant, substance or structure at the workplace. 1. Section 23 of the Act imposes a health and safety duty on a manufacturer of plant, a substance or structure in similar terms to that provided for by section 22 of the Act. 2. Section 24 of the Act imposes a health and safety duty on an importer of plant, a substance or structure in similar terms to that provided for by section 22 of the Act. 3. Section 25 of the Act imposes a health and safety duty on a supplier of plant, a substance or structure in similar terms to that provided for by section 22 of the Act. 4. Section 26 of the Act provides that a person who conducts a business or undertaking that installs, constructs or commissions plant or a structure that is to be used or could reasonably be expected to be used as or at a workplace, owes a health and safety duty to ensure, so far as is reasonably practicable that the plant or structure is commissioned or installed without risks to the health and safety of persons: 1. who install or commission the plant or structure at a workplace; 2. who use the plant or structure at a workplace for the purpose for which it was commissioned or installed; 3. who carry out any reasonably foreseeable activity at a workplace in relation to the proper use, decommissioning or dismantling of the plant or demolition or disposal of the structure; or 4. who are in the vicinity of the workplace and whose health and safety may be affected by a use or activity referred to in paragraph (a), (b) or (c). 1. Section 28 of the Act imposes a health and safety duty on workers "while at work" to take reasonable care for their own health and safety, the health and safety of other persons, to comply with any reasonable instruction given by the person conducting the business or undertaking and to co-operate with any policy or procedure relating to health and safety at the workplace that has been notified to workers. 2. Section 29 of the Act imposes a health and safety duty on persons at a workplace to take reasonable care for their own health and safety, take reasonable care that their acts or omissions do not adversely affect the health and safety of other persons and to comply with any reasonable instruction given by the person conducting the business or undertaking to comply with the Act. 3. The duties imposed by the Act are non-delegable: section 14 of the Act. A person can have more than one duty by being in more than one class of duty holder: section 15 of the Act. More than one person can concurrently have the same duty: section 16 of the Act. 4. Section 32 of the Act provides: 5. A person commits a Category 2 offence if: 6. the person has a health and safety duty, and 7. the person fails to comply with that duty, and 8. the failure exposes an individual to a risk of death or serious injury or illness. 9. Offences provided for by the Act are offences of strict liability: section 12A of the Act. The defendant's argument 1. The defendant's arguments can be summarised as follows. 2. A person conducting a business or undertaking (PCBU) owes the section 19(1) duty to workers, a term defined by section 7 that is limited temporally to the period "while the workers are at work in the business or undertaking". Section 19(2) is owed to other persons, who are not workers, and it does not have the temporal limitation. It follows that textually the section 19(2) duty has a broader operation than that provided for by section 19(1). 3. The matters referred to as relevant to the scope of the duty provided for in section 19(3), although expressed as not limiting the duty imposed by section 19(1) or 19(2), generally concern the provision of a safe work environment and conditions at a workplace. Section 19(3) does not specify a minimum standard of conduct in relation to other persons who are geographically and or temporally separated from the PCBU. 4. The duties imposed by Division 3 of Part 2 of the Act (sections 20-26) (the Further Duties) are confined by the geographical limiter of the workplace. The duty imposed on workers by section 28 of the Act is similarly confined by the geographical limiter of the workplace. In oral argument, the defendant contended that the wider interpretation of the section 19(2) duty would render the Further Duties otiose. 5. The section 19(2) duty should also be geographically limited to the workplace to avoid a PCBU from owing a duty for an indeterminate time to an indeterminate class. The protection of "other persons" at a workplace promotes the objects of the Act and should be preferred to the creation of a duty owed to the world at large. 6. That construction is supported by reference to the extrinsic material. In the National Review into Model Occupational Health and Safety Laws First report to the Workplace Relations Ministers' Council October 2008 (the National OHS Report) the authors described the section 19(2) duty as "owed to anyone who is performing work in the business or undertaking and to all who may be affected by the conduct of the business or undertaking (eg visitors and passers-by, other parties carrying out work activities in the same place)". 7. Nothing in the extrinsic material would confirm an interpretation that the section 19(2) duty was owed to the world at large. 8. On application of that interpretation to the facts, the defendant only owed a duty to persons traversing through its premises, which did not include Mr Jenkins. As a result the prosecution is doomed to fail and the proceedings should be dismissed or permanently stayed. The prosecutor's argument 1. The prosecutor's argument can be summarised as follows. 2. A similar argument was rejected by the full bench of the South Australian Industrial Relations Court in Boland v Safe is Safe Pty Ltd and Munro [2017] SAIRC 17 (Safe is Safe). The principle of judicial comity applies and the Court should follow the decision unless satisfied that it is clearly wrong. 3. The language of section 19(2) does not require the "other person" to be at work or at a workplace. 4. The law relating to causation, an element of the section 32 offence, requires that the act or omission of the PCBU [4] to be a significant or substantial cause of the risk. Causation is required to be assessed by the application of common sense and by appreciating that the purpose of the enquiry is to attribute responsibility in a criminal matter: Bulga Underground Operations v Nash [2016] NSWCCA 37 at [127]-[128] and Royall v The Queen (1991) 172 CLR 378. The application of these well settled principles limits the imposition of criminal liability on PCBUs in relation to "other persons". 5. The objects of the Act stated in section 3 refer to the protection of workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work. 6. The interpretation of section 19(2) that does not require a temporal or geographical connection to the work, promotes the express objects of the Act stated in section 3(1)(a) and 3(2): Boland v Safe is Safe at [29] and [33]. 7. The Explanatory Memorandum states in clause 79-83 that the section 19(1) duty is tied to the work activities, wherever they occur and is not limited to the confines of a physical workplace. The section 19(2) duty extends beyond the workers of the PCBU to cover all other persons affected by the carrying out of the work. The section 19(2) duty is different to the positive duty in section 19(1), because it is expressed as a duty to ensure that other persons are not put at risk, even though the general aim of both duties is to prevent exposure to risk. 8. The previous legislation required the prevention of risks to employees and other persons at a workplace: section 16 Occupational Health and Safety Act 1983 and section 8 Occupational Health and Safety Act 2000. The removal of the geographical limitation was a deliberate choice by the legislature and must be given effect. 9. The interpretation contended for by the defendant requires the Court to read words into the provision, because on a literal reading of section 19(2) the duty is not limited by time or place. The necessary prerequisites for doing so cannot be satisfied in the present case. Consideration 1. In Safe is Safe, the defendant wrongfully conducted an annual inspection of an amusement ride at the Adelaide Showgrounds and certified that it complied with the appropriate standards. On 12 September 2014 a young patron was ejected from the ride and died. The users of the ride, in particular the occupants of seat 5, were put at risk of serious injury or death as a result of being ejected from the ride when it was operated. The ride was inspected by the defendant's employee at the place where the incident occurred and it was thereby a "workplace" as defined by the Act. 2. The full bench of the South Australian Industrial Relations Court was asked to decide if the second 19(2) duty was limited to the date of inspection (1 September) or if it extended to the period when the ride was operated (4-13 September). The Court held that on a proper construction of the provision the duty was owed for the period when the ride was operated. 3. The Court accepted that the primary focus of the Act was the protection of workers at a workplace, and section 19(1) is expressed in those terms. The defendant's argument required the Court to read words into section 19(2), because a literal reading of the provision, is not limited by time or place: [25]. 4. The Court referred to the law requiring that the provision be construed by reference to the text and not from any assumptions about the desired reach or operation of the relevant provisions and to the caution that should be exercised before reading words into a statute: [26]-[28]. 5. The Court considered that the words of section 3(2) of the Act that workers and "other persons" should be given the highest level of protection against harm arising from work, was scarcely inconsistent with giving the duty in section 19(2) a broad reach: [29]. I would add to this that section 3 also refers to the duties to other persons "arising from work". That is a wide expression that does not suggest a temporal or geographical limitation. 6. The Court considered it difficult to see how Lord Diplock's preconditions for reading words into the provision could be met: [30]. 7. The Court did not accept that the extrinsic materials indicated that the section 19(2) duty was intended to have a limited reach, but even if they did, The Court found that they could not displace the meaning of the statutory text: [31]. In my view, the extrinsic material tendered before me was equivocal and I would adopt the approach in Safe is Safe. 8. The Court rejected the argument that the plain meaning of section 19(2) would render the Further Duties otiose. The wording of sections 20-26 made it plain as to where and when those duties were owed and section 15 made it clear that a person could have more than one duty by reason of being in more than one class of duty holder: [32]. 9. The Court accepted that the duties imposed by the Act were onerous. The Court said that it was no less harsh to impose criminal liability on a person for a breach of duty involving a member of the public at a workplace, than to do so for breach of duty involving a member of the public arising from the performance of work at a workplace. In many instances a PCBU will have more control over the work than over the workplace: [33]. 10. The Court pointed out that the breach in Safe is Safe occurred at a workplace. On the facts, the defendant put the nominated class of persons at risk when the ride was inspected and the certificate issued. Section 19(2) requires the health and safety of other persons is not put at risk from work carried out. Risk in this context means the possibility of danger to the nominated class of persons: R v Board of Trustees of the Science Museum (1993) 1 WLR 1171 at 1177-8. 11. I am satisfied that Safe is Safe is correctly decided and that I should follow it. 12. The decision of the Court in Safe is Safe is obiter dicta with respect to the geographical limitation because the work carried out by the defendant occurred at a workplace. However, I am satisfied that the decision on that point is also correct and should be followed for the reasons that follow. 13. The definition of "workplace" in section 8 is a wide one. It is a place where work is carried out for a business or undertaking and includes any place where a worker goes or is likely to be while at work. A place includes a vehicle, vessel, aircraft or other mobile structure. It follows that work will usually, if not always, be performed by a worker at a workplace. In my view, this is what the Court had in contemplation in Safe is Safe at [33] when it referred to the "health and safety consequences resulting from the performance of work at a workplace". It follows that the distinction between providing systems to ensure a safe workplace and systems to ensure that other persons are not put at risk from work carried is not as significant as it may appear. 14. I do not accept the defendant's argument that the section 19(2) duty is owed to the world at large. The class of persons to whom the duty is owed is limited by their proximity to a risk created by the work carried out as a part of the business or undertaking. The requirement that a PCBU should take reasonably practicable steps to protect against risk to other persons created by things like the inadequate repair of vehicles or the unsafe transport of materials, may be considered to be onerous but is not beyond the stated objects of the Act. 15. In the present case the risk was a risk to persons who may come into proximity of the tail gate, such as by operating it: Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94. The risk was created at the time when the work was done at the defendant's workplace. Other persons (Mr Triggs and Mr Jenkins) were only exposed to that risk when the truck was returned to Mr Triggs on 22 December 2015 with the defective tail gate. Mr Jenkins was subsequently exposed to that risk on 23 December 2015 when he was required to work on the truck and to open the tail gate to remove the partitions. 16. Causation is an element of the offence that must be proved to the criminal standard. The PCBU's act or omission must be a significant or substantial cause of the person being exposed to the risk. Geographical and temporal factors may be relevant in assessing causation which may have the effect of limiting the imposition of criminal liability in an appropriate case. Conclusion 1. For the reasons given, I find that Mr Jenkins was an "other person" referred to in section 19(2) of the Act. 2. I will defer making orders to allow the parties to consider if I should state the question of law to the Court of Criminal Appeal. ********** Endnotes 1. The Statement of Facts was accepted by the parties for the purpose of the argument, allowing me to prepare a short summary. 2. I have underlined the references to persons in the relevant sections to whom a health and safety duty is owed, or maybe otherwise relevant to the arguments advanced. 3. Underlining added. 4. Person conducting a business or undertaking (PCBU). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 August 2018