Australia: Unexpected Outcomes In Recent Decisions Means Challenging WHS Prosecutions Is Still Worthwhile

During the past (almost) five years since the model work health and safety legislation commenced around much of Australia, many technical challenges and questions of interpretation of the legislation have been raised. This is not unexpected when it comes to new legislation as any kinks need to (and should be) ironed out. However, several recent decisions handed down have revealed quite startling interpretations of the legislation by the courts.

The Rawson Case – Section 19(2) does not apply to 'workers'

In a procedural ruling in the case SafeWork NSW v Rawson Homes Pty Ltd [2016] NSWDC 237, NSW District Court Judge Kearns found that the regulator could not prosecute under Section 19(2) of the model act as the subsection does not apply to 'workers'.

Rawson was prosecuted in its capacity as a principal contractor at a construction site. Rawson had engaged Regal Contracting (NSW) Pty Ltd to undertake excavation work and pour a concrete slab.  Regal contracted with Dagmar Pty Ltd to provide a concrete pump truck, boom and operator to pour concrete to the site. On 30 October 2013, an employee of Regal was seriously injured, and five other Regal employees escaped injury, when the extended boom of the concrete pump truck collapsed during a pour.  SafeWork NSW alleged that Rawson failed to ensure, so far as is reasonably practicable, that the health and safety of other persons was not put at risk from work carried out as part of its business or undertaking, contrary to Section 19(2) of the model act.

Employees of contractor were 'workers'

Rawson argued that it did not owe a health and safety duty under Section 19(2) because the employees of Regal were its 'workers' and instead its duty to those 'workers' fell under Section 19(1).  The court found that as Rawson's site supervisor had functions including stopping, rejecting or quarantining work methods, work areas, materials, plant and equipment this meant that Rawson could influence and direct the activities of Regal's employees on site.  Accordingly, those Regal employees were 'workers' pursuant to Section 7(1)(c), in that they were employees of Rawson's contractor.

'Other persons' does not include 'workers'

The decision then fell to whether Section 19(2) could apply to 'workers' or only to persons other than workers.

The court determined that the key issue was whether 'other persons' (the term used in Section 19(2)) refers to workers in Section 19(1) or to the person conducting a business or undertaking (PCBU).  Rawson submitted that 'other persons' referred to persons other than those described in Section 19(1)(a) and (b) – that is, persons other than workers.  The prosecutor argued that the words 'other persons' referred to persons other than the PCBU.

The court rejected the prosecutor's argument, stating that it found the prosecutor's interpretation of Section 19(2) "odd in circumstances where Section 19(1) had already imposed a duty in relation to 'workers'".  The Court added that the prosecutor's interpretation "would only make sense if Section 19(2) imposed some additional duty on the PCBU in relation to workers that was not imposed on it by [Section 19(1)]".  The court also found that the prosecutor's interpretation of 'other persons' would render Section 19(1) useless.

Accordingly, Kearns J found that Section 19(2) did not apply to the case and the summons against Rawson was dismissed.

This decision is somewhat surprising to those who have been closely watching how the courts have been interpreting the legislation over the past few years.

The term 'person' in the model act refers to both natural persons and corporations as per the meaning given to the term under the various Acts Interpretation statutes throughout Australia. The model act provides no definition of 'person' and makes no suggestion that the term person should have any other meaning in Section 19(2) than the typical meaning given to that term.

In fact, the example clause for what is now Section 19 prepared by the National Review into the model occupational health and safety laws in 20081 provided for the duty to be owed to workers and 'any other persons'.  It was not split up into two subsections as it is currently in Section 19.  This made it abundantly clear that the duty was owed to each of these categories.

So the question must be asked: what relevance does Section 19(1) have at all, given that the term 'other persons' could be interpreted to mean people other than the PCBU, which includes workers? Every breach of Section 19(1) could be prosecuted under Section 19(2).

The primary duty was only split into two subsections after concerns arose as to the extent to which the duty should apply to public safety.2

Despite the assumed intention behind splitting the primary duty into two subsections, the clumsiness of the drafting of Section 19 of the model act raises doubts over how it should operate in practice.  

Curiously, in this instance the regulator indicated to the District Court of NSW that it did not wish to appeal the court's findings in respect of Section 19(2) to the NSW Court of Appeal for determination. This is an unusual step given that the regulator has not shied away from challenging decisions that have gone against it in the past.

Perhaps a reason for the regulator ruling out an appeal was the decision of the Northern Territory Court of Appeal which was handed down in between the time that the argument was heard and the time of the District Court's ruling.  The comments made by the Court of Appeal in the Kidman case (discussed in further detail below) were that Section 19(2) was "capable only of application to persons other than workers as defined". 

The Kidman case - the content of statutory notices is essentially equal to the content of a summons

The case of S Kidman & Co v Lowndes CM & Director of Public Prosecutions [2016] NTCA 5 involved a challenge to a summons on the basis that the summons was defective and invalid for failing to specify a specific offence under Section 19 of the model act and failing to particularise the failure to ensure health and safety. The Local and Supreme Courts of the Northern Territory had both previously found in favour of the Director of Public Prosecutions.

The prosecution related to an incident on 8 February 2012 on Kidman's cattle farm, in which an employee of Kidman was killed when he was struck by a metal pole he was attempting to manoeuvre into position while using a skid steer loader.

The summons stated that it had breached Section 19 of the model act (without nominating whether Kidman had breached subsection (1) or (2)) and contained no particulars of the offence.  A statement of particulars was only served on Kidman after the expiry of the limitation period for the offence.

Complaint defective

The Court of Appeal found that because the summons failed to plead all the essential elements that constituted the offence, the summons was defective. The summons failed to identify the deceased's employment relationship with Kidman.  Simply naming the individual exposed to the risk was "insufficient to make it plain which subsection was being invoked".  In addition, the summons failed to specify whether Kidman was to have breached Section 19(1), which applies only to workers, or Section 19(2), which applies only to persons other than workers. Kidman was not required to assume the charge was brought under Section 19(1) due to an "imputed knowledge of the [deceased's] employment status".

The court found that the summons failed to provide adequate particulars of the factual manner in which the health and safety duty was alleged to have been breached. Since the particulars furnished by the prosecutor prior to the limitation period did no more than particularise the time and place of the alleged offence and then simply referred to sections 32 and 19 of the model act, the Court of Appeal held that the summons went "no way towards describing the act or omission said to constitute the relevant failure, the factual matters constituting the relevant risk, or the state of affairs the appellant is said to have failed to ensure [health and safety]".  The summons also failed to identify what reasonably practicable measures the appellant could have taken. Accordingly, the summons "did not give [Kidman] a reasonably clear and intelligible statement of the offence with which it was charged".

The court then turned its mind to whether these defects could be cured by amendment.  

Summons amendable because of the defendant's prior knowledge of the content of statutory notices

The Court of Appeal found that what was alleged in the summons was "unquestionably" an offence known to the law, but its defects were failing to make clear which of the two offences (i.e. sections 19(1) or 19(2)) was the one alleged and failing to provide particulars.

The Court of Appeal then looked at whether amendment would otherwise cause an injustice to Kidman, which involved an enquiry as to whether Kidman, prior to the expiration of the limitation period, was in a position to establish the true nature of the charge from the terms of the summons in combination with extraneous materials and circumstances.  The Court of Appeal endorsed the approach taken by the magistrate at first instance, who found that even if the true nature of the offence was not apparent from the face of the summons, Kidman was in possession of other information prior to the expiry of the limitation period which, if taken in combination with the summons, was "sufficient to impart to [Kidman] a sufficient understanding of the nature of the alleged offence".  This 'other information' included a prohibition notice issued by the regulator preventing Kidman from using the loader and an improvement notice issued to the Kidman requiring it to review its procedures for hazard identification, risk assessment and control measures for safe systems of work.  

The Court of Appeal further agreed with the approach of the Local Court in finding that while an amendment which would constitute the laying of a new charge outside the limitation period would give rise to a material injustice, in this case, "an amendment clarifying the charge, in circumstances where the nature of the offence should have been reasonably apparent to [Kidman], would not" cause any prejudice.  The court did not consider Kidman's argument that the loss of the limitation period defence and the possibility that its defence of the matter had been compromised by the effluxion of time, amounted to a material injustice.   The matter was remitted back to the Local Court.

The Court of Appeal's findings are unexpected. The content of the statutory notices issued to Kidman during the regulator's investigation of the incident bared some relationship to the particulars served on Kidman after the expiry of the limitation period, but were in no way identical.  Prohibition and improvement notices are typically served on PCBUs in the immediate aftermath of an incident, before a thorough investigation by the regulator has taken place. They are usually reactionary measures. As a result, these notices often have little, if any, resemblance to the charge that is eventually laid on a PCBU up to two years later (or longer in some circumstances) after an extensive investigation by both the regulator and the PCBU itself, which more often than not reveal the true nature of an alleged contravention of the legislation.

The decision also does not sit comfortably with the decisions in cases such as Kirk v Industrial Court (NSW) (2010) 239 CLR 531, in which a summons was dismissed on the basis of insufficient particulars to a charge, and Attorney General of New South Wales v Built NSW Pty Ltd [2013] NSWCCA 299, in which a summons was dismissed on multiple bases including that the summons alleged an offence not known to law because the charge alleged elements of the equivalent duties to sections 19(1) and 19(2) of the precursor legislation.      

As an additional matter, the Court of Appeal in Kidman upheld the Supreme Court's decision that the limitation period for the offence had not expired because the deputy coroner's investigation constituted an "inquiry" for the purposes of the specific coronial legislation in the Northern Territory. The deputy coroner handed down a report two years after the incident stating that an inquest would not be held but that an investigation conducted by the regulator had identified that the operator's inexperience and a mechanical defect in the skid steer loader had contributed to the fatal incident.  The charges were laid against Kidman a year after the deputy coroner's report was handed down and Kidman had argued this exceeded the limitation period in Section 232(1)(b) of the act because there had not been an inquiry or inquest into the fatality. The Supreme Court found that the deputy coroner's investigation was a form of coronial inquiry.  Given the difference between the Coroner's Act (NT) and other coronial legislation across Australia, it is debatable whether a similar decision would be made in other jurisdictions. 

What does this mean for the future of the legislation?

It is unlikely that Rawson and Kidman will be the last say on the issues canvassed in those cases.  The scope of the model work health and safety legislation is still being tested across Australia and is far from settled.  Persons charged with an offence under the model legislation across Australia should consider those charges closely and question whether in fact those charges have been brought appropriately for the circumstances of this case, for example: is the risk particularised in the charge actually the risk that workers or other persons were exposed to? Is it clear what offence is alleged? Have adequate particulars of an alleged contravention been provided?   

The more the courts are pressed to settle uncertainties and inconsistencies in the legislation, the greater clarity there will be for duty holders under the legislation.    

Footnotes

1. Provided in the National Review into Model Occupational Health and Safety Laws, First Report to the Workplace Relations Ministers' Council, Commonwealth of Australia, October 2008 at clause 6.125

2. See National Review into Model Occupational Health and Safety Laws, Second Report to the Workplace Relations Ministers' Council January 2009, Commonwealth of Australia, February 2009 and Workplace Relations Ministers' Council, WRMC Response to Recommendations of the National Review into Model OHS Laws, 18 May 2009, response to recommendations 11, 12 and 21

Unexpected Outcomes In Recent Decisions Means Challenging WHS Prosecutions Is Still Worthwhile

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