Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Simpson Design Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316
• Hearing dates: 15 August 2011
• Decision date: 30 September 2011
• Before: Bathurst CJ at 1; Allsop P at 2; Beazley JA at 8; Basten JA at 9; Sackville AJA at 20

Decision

1. Application dismissed.

2. Applicant to pay the second respondent's costs of the application.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: JUDICIAL REVIEW - challenge to conviction in the Industrial Court under s 11(1)(a) of the Occupational Health and Safety Act 2000 - applicant the designer of a heavy gate which fell and killed a person at a workplace - applicant's defence of novus actus interveniens rejected - whether Industrial Court applied the wrong test for causation - whether design defect overtaken by subsequent negligent failure by third party to correct the defect - whether decision affected by fundamental error
• Legislation Cited: Trade Practices Act 1974 (Cth); Criminal Appeal Act 1912; Criminal Procedure Act 1986; Industrial Relations Act 1996; Interpretation Act 1986; Justices Legislation Repeal and Amendment Act 2001; Occupational Health and Safety Act 1983; Occupational Health and Safety Act 2000; Supreme Court (Summary Jurisdiction) Act 1967; Supreme Court Act 1970; Occupational Health, Safety and Welfare Act 1986 (SA); Industrial Relations Commission Rules 1996; Industrial Relations Commission Rules 2009
• Cases Cited: Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; 221 CLR 568; Arulthilakan v The Queen [2003] HCA 74; 78 ALJR 257; Batterham v QSR Ltd [2006] HCA 23; 225 CLR 237; Campbell v The Queen [1981] WAR 286; (1980) 2 A Crim R 157; Ching v Hy-Tec Industries Pty Ltd [2010] NSWIRComm 73; Ching v Simpson Design Associates Pty Ltd [2009] NSWIRComm 213; Craig v South Australia [1995] HCA 58; 184 CLR 163; Gianoutsos v Glykis [2006] NSWCCA 137; 65 NSWLR 539; Gilmour v Environment Protection Authority [2002] NSWCCA 399; 55 NSWLR 593; GPI (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157; Hakim v Waterways Authority of NSW [2006] NSWCCA 376; 149 LGERA 415; Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 39; March v Stramare (E & MH) Pty Ltd [1991] HCA 12; 171 CLR 506; Newcastle Wallsend Coal Co Pty Ltd v Workcover Authority (NSW) (Inspector McMartin) [2006] NSWIRComm 339; 159 IR 121; O'Toole v Charles David Pty Ltd [1991] HCA 14; 171 CLR 232; R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; 70 CLR 598; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82; Royall v The Queen [1991] HCA 27; 172 CLR 378; Simpson Design Associates Pty Ltd v Ching [2011] NSWIRComm 7; Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6, 205 CLR 304; Stapley v Gypsum Mines Ltd [1953] UKHL 4; [1953] AC 663; Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252
• Category: Principal judgment
• Parties: Simpson Design Associates Pty Ltd (ACN 088796785) (Applicant); Industrial Court of New South Wales (First Respondent, submitting appearance); Inspector Barnabas Ching (Second Respondent)
• Representation: I M Neil SC with P Moorehouse (Applicant); S Crawshaw SC with P McDonald SC (Second Respondent); Kennedys (Applicant); Industrial Court of New South Wales (First Respondent); Workcover Authority of Australia (Second Respondent)
• File Number(s): 2011/108860
• Publication restriction: No

Decision under appeal

• Citation: [2011] NSWIRComm 7
• Date of Decision: 2011-02-25 00:00:00
• Before: Boland P, Kavanagh J, Marks J
• File Number(s): IRC 2010/503

Judgment

1 BATHURST CJ: For the reasons given by Sackville AJA, in my opinion the application for relief must be dismissed with costs.

2 ALLSOP P: I have read the reasons of Sackville AJA. I agree with the orders that his Honour proposes and, subject to the following comments, with his Honour's reasons. I will use abbreviations as used in Sackville AJA's reasons.

3 As Sackville AJA says, the element of the offence is not the causing of injury or death. Rather, the OHS Act, s 11 is concerned with the act or omission (designs, manufactures or supplies) and the state of affairs brought about thereafter (risk to health). To the extent that that relationship involves a causal relationship, the assessment of that causal relationship, depending upon the relevant temporal focus, might be quite different from an assessment of the causal relationship between the act or omission and the crystallisation of the risk that has been created.

4 Here, the relevant causal relationship was that involving the acts and omissions of SDA and the risk to health and safety on 14 October 2003, the very day of the fatality. No one suggested that different factual questions would attend analysis of the causal relationship between the acts or omissions and the risk (on the one hand) or the fatality (on the other).

5 I agree with Sackville AJA that the Full Bench correctly addressed the legal test or framework for the factual question involved. I also agree that it cannot be concluded that the Full Bench, having correctly stated the relevant legal principle, merely applied a "but for" test. Nor has it been shown that Haylen J misdirected himself. The assessment of the effect of the intervention of third parties in the causal relationship is an evaluative one. Minds might reasonably differ about such questions. Here the conclusion of causal connection was open.

6 In these circumstances, it is unnecessary to discuss the circumstances in which a conclusion of causation that was not open on the evidence might amount to an error, jurisdictional in character. Whether or not the kinds of considerations that attend the decision-making of a court, referred to in Craig v South Australia [1995] HCA 58; 184 CLR 163 at 179-180, are sufficient to conclude that a mistake of law or fact in a criminal trial would not be jurisdictional, may depend on the nature, quality and context of the mistake: Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at 569-573, and in particular [63]-[64] and [69]-[70]. In respect of a court exercising criminal jurisdiction without any direct appellate supervisory review by the High Court, the nature of jurisdictional error may raise questions derived from the operation of the Australian Constitution , s 73.

7 Also, had it been shown that Haylen J had erred in a manner that was jurisdictional in character, the question would arise as to whether SDA would be entitled to relief, even in circumstances of appellate review by the Full Bench in a manner not displaying jurisdictional error. I do not express an opinion on this, in particular as to whether the exercise of discretion in such circumstances to deny relief would be appropriate.

8 BEAZLEY JA : I agree with Sackville AJA.

9 BASTEN JA : For the reasons given by Sackville AJA, the application should be dismissed with costs; there was no relevant error on the part of the Full Bench of the Industrial Court, nor on the part of the primary judge, Haylen J.

10 In those circumstances, it is not necessary to determine the correctness of the further submissions of the applicant, to the effect that the alleged error was jurisdictional in nature. However, it is convenient to note an assumption underlying the submissions, which could have given rise to difficulties if it had been necessary to take the further step required for the applicant to attain success, the assumption not being fully addressed.

11 The assumption was that the applicant could succeed by identifying jurisdictional error on the part of the primary judge. The reasoning of the Full Bench was not disregarded, but was treated as a subsidiary aspect of the challenge. The underlying proposition appears to have been that because the privative clause could not protect the Industrial Court from jurisdictional error, it would be sufficient to identify jurisdictional error at the trial stage. If the assumption is correctly identified, it is curious that the issue was addressed without reference to the privative clause in s 179 of the Industrial Relations Act 1996 (NSW). (Although the charge related to conduct which occurred, at its latest, in October 2003, the current form of s 179, which commenced on 9 December 2005, was applicable because there was no order or decision of the Industrial Court prior to that date: Industrial Relations Act , Sch 4, cl 31B.) Relevantly for present purposes, s 179 provides:

" 179 Finality of decisions

(1) A decision of the Commission (however constituted) is final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal.

...

(4) This section extends to proceedings brought in a court or tribunal in respect of a purported decision of the Commission on an issue of the jurisdiction of the Commission, but does not extend to any such purported decision of:

(a) the Full Bench of the Commission in Court Session, or

(b) the Commission in Court Session if the Full Bench refuses to give leave to appeal the decision.

(5) This section extends to proceedings brought in a court or tribunal for any relief or remedy, whether by order in the nature of prohibition, certiorari or mandamus, by injunction or declaration or otherwise.

(6) This section is subject to the exercise of a right of appeal to a Full Bench of the Commission conferred by this or any other Act or law."

12 A provision seeking to exclude relief in the nature of prohibition or mandamus (and certiorari other than for error of law on the face of the record) can only be engaged in respect of a decision made in excess or want of jurisdiction. Such a decision may aptly be described as a "purported decision": O'Toole v Charles David Pty Ltd [1991] HCA 14; 171 CLR 232 at 285-286 (Deane, Gaudron and McHugh JJ). Not all "purported decisions" would be excluded, a document being a forgery or sham not attracting the protection of such a provision. That limitation was reflected in the language of Dixon J in R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; 70 CLR 598 at 615 to the effect that the decision must be "a bona fide attempt to exercise [the] power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body".

13 In the present case, it could not be said that the judgments in the Industrial Court fell foul of the exceptions; accordingly they must have been within the ordinary meaning of the privative clause.

14 There is a further question as to whether the decision of the Full Bench fell within the exception to the privative clause, contained in sub-s 179(4). The Full Bench undoubtedly addressed the question which the applicant asserted in this Court to be jurisdictional. If it got the answer wrong, thus claiming the authority to dismiss the appeal, it might arguably be described as a "purported decision of the Commission on an issue of the jurisdiction of the Commission". If that were so, the privative clause would not extend to "any such purported decision" of the Full Bench and hence there would be no reason to read it down as constitutionally beyond power. On standard principles of interpretation, that reading should be preferred. However, there is at least a dictum in Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at [103] that neither the extended operation of the section, nor the exception to it, applies in such a case. That is because, the joint judgment appears to suggest, its operation will be limited to circumstances where the Industrial Court was expressly invited to dismiss the proceedings for want of jurisdiction and declined to do so: see Batterham v QSR Ltd [2006] HCA 23; 225 CLR 237 at [10]. Nor would it be usual to read down a provision which has the effect of permitting access to the supervisory jurisdiction of this Court: cf Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at [69].

15 In relation to the position of the primary judgment, it is necessary to identify its status following the appeal to the Full Bench. Section 196 of the Industrial Relations Act applies to appeals to the Full Bench in respect of criminal proceedings and appears to assume the existence of a right of appeal. The appeal is governed by the provisions of s 5AA of the Criminal Appeal Act 1912 (NSW). Prior to amendments in September 2000, that section provided for a rehearing in respect of appeals from the Supreme Court in the exercise of its summary jurisdiction. Those provisions having been repealed, the appeal is now sometimes described as an appeal "in the strict sense rather than an appeal by way of rehearing": Gianoutsos v Glykis [2006] NSWCCA 137; 65 NSWLR 539 at [36] (McClellan CJ at CL, Sully and Hislop JJ agreeing). There has been a tendency to identify the powers of the appeal court by reference to those aspects of s 6(1) of the Criminal Appeal Act which have ready application to a judge alone trial: see Gilmour v Environment Protection Authority [2002] NSWCCA 399; 55 NSWLR 593 (Santow JA, Hidden and Adams JJ agreeing)(operation of proviso) and Hakim v Waterways Authority of NSW [2006] NSWCCA 376; 149 LGERA 415 at [38] (Spigelman CJ, Grove and Bell JJ agreeing) (miscarriage of justice).

16 Whatever the precise nature of the appeal, there is no suggestion that it is limited to a ground involving a question of law alone (cf s 5(1)(a) of the Criminal Appeal Act ), nor that it is subject to a requirement for leave, which might be used to limit the scope of the appeal to the Full Bench: cf Kirk at [45]-[46].

17 The rationale underlying the constitutional requirement for maintenance of the supervisory jurisdiction of the State Supreme Courts would not self-evidently be engaged in respect of the trial judgment in the Industrial Court in circumstances where there was a right of appeal to the Full Bench. The discretionary power to refuse relief would be available in respect of a decision which could be appealed and had not been: Kirk at [87]. Where there has been an appeal to the Full Bench, dismissed for reasons not revealing jurisdictional error on the part of the Full Bench, it is doubtful that the applicant could challenge the trial judgment as infected by jurisdictional error. That step, if successful, would result in inconsistent judgments, unless the appeal court decision could also be set aside. The justification for setting the appellate decision aside might be that it was infected by the same want or excess of jurisdiction as infected the decision of the trial court. In that case, the premise is false, because the appeal court decision would not be immune from relief in the supervisory jurisdiction: see Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252; at [73]-[77] (Spigelman CJ, Beazley JA agreeing) and at [81]-[84]. In other words, the Full Bench would have no scope to determine incorrectly the limits of power of its own trial judge. If correct, it is not clear whether that conclusion would follow as a matter of statutory construction or constitutional principle.

18 It is unnecessary to resolve these (and related) uncertainties in the present case, relevant error not having been established. However, in a case where error is established, it may well be necessary to answer questions as to the nature and scope of jurisdictional error and the further questions relating to relief set out above.

19 Assuming that jurisdictional error had been established, contrary to the concession by counsel for the applicant noted by Sackville AJA at [114], there would be no reason to refuse relief on discretionary grounds unless the decision of the Industrial Court was the only decision reasonably open in the circumstances. If a decision were open either way, a defendant in criminal proceedings would be entitled to the judgment of the trial court, untainted by jurisdictional error. That approach is consistent with the reasoning in Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 147; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [58]-[60] (Gaudron and Gummow JJ); cf SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [29] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ), [59] and [73] (Kirby J) and [91] (Hayne J). (There is no need in the circumstances of the present case to discriminate between the availability of a discretion to refuse relief under s 75(v) of the Constitution and under s 69 of the Supreme Court Act 1970 (NSW).)

20 SACKVILLE AJA: On 14 October 2003, Ms Melissa Maybury was fatally injured when the leaf of a metal bi-sliding gate fell on her. The metal gate was nearly 11 metres long and 2.5 metres wide. The leaf weighed approximately 1,340 kilograms. The gate was being manually operated at the time of the accident.

21 Following a coronial inquiry, several corporations were charged with breaches of the Occupational Health and Safety Act 2000 ("OHS Act") in relation to the accident. These included the applicant (" SDA "), a structural engineering company.

22 SDA prepared the structural steel design for the framework of the gate, which was to be installed at a concrete batching plant located at Mascot. SDA's design did not include a stop mechanism to prevent the leaves of the gate coming out of the portals when the gate was manually operated. SDA was charged with a contravention of s 11(1)(a) of the OHS Act, in that it designed plant for use by persons at work which it failed to ensure was safe and without risks to health when properly used. The prosecution was heard in the Industrial Court of New South Wales.

23 SDA relied in the Industrial Court on what it described as a defence of novus actus interveniens. It contended that the true cause of the accident was the conduct of an unknown third party who had installed a stop mechanism in the gate in about November 2002, but had done so negligently, with the consequence that the stop mechanism failed to prevent the accident on 14 October 2003.

24 On 15 December 2009, the Industrial Court (Haylen J) convicted SDA of the offence and on 9 June 2010 the Court imposed a fine of $185,000 on SDA: Ching v Simpson Design Associates Pty Ltd [2009] NSWIRComm 213; Ching v Hy-Tec Industries Pty Ltd [2010] NSWIRComm 73. The conviction and penalty were confirmed on appeal to the Full Bench of the Industrial Court (Boland J (President) and Kavanagh J; Marks J dissenting): Simpson Design Associates Pty Ltd v Ching [2011] NSWIRComm 7. Both Haylen J and the majority of the Full Bench rejected SDA's novus actus interveniens defence.

25 SDA seeks orders from this Court under s 69 of the Supreme Court Act 1970, bringing up the record of the Industrial Court and quashing the orders by which:

(i) SDA was convicted and sentenced by the primary Judge; and

(ii) its conviction and sentence were confirmed by the Full Bench.

SDA also seeks relief in the nature of prohibition preventing any further proceedings on the charge that it contravened s 11(1)(a) of the OHS Act. In its written submissions, SDA has foreshadowed that if it succeeds in obtaining relief in this Court it will seek a further order requiring repayment of that portion of the fine which it has paid.

26 SDA contends that both the primary Judge and the Full Bench committed a jurisdictional error that warrants the intervention of this Court in the exercise of its supervisory jurisdiction, in accordance with the principles stated in Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 (" Kirk "). The error is said to be that both the primary Judge and the Full Bench applied the wrong test to determine whether there was a causal relationship between the appellant's inadequate design and the risk of injury that existed on 14 October 2003. According to SDA, the error led to its novus actus interveniens defence being wrongly rejected.

27 Because SDA's submissions raised questions as to whether certain authorities pre-dating Kirk might require reconsideration or qualification on the question of jurisdictional error, a bench of five was convened to hear SDA's application. However, before those questions are reached SDA must establish that the Industrial Court, in particular the Full Bench, committed an error that is capable of being characterised as a jurisdictional error. In my opinion, SDA has not done so and thus its application must be dismissed.

LEGISLATION

28 The objects of the OHS Act are set out in s 3 and include the following:

"(a) to secure and promote the health, safety and welfare of people at work,

...

(e) to ensure that risks to health and safety at a place of work are identified, assessed and eliminated or controlled".

29 Section 11 of the OHS Act relevantly provides as follows:

"(1) A person who designs , manufactures or supplies any plant or substance for use by people at work must:

(a) ensure that the plant or substance is safe and without risks to health when properly used, and

...

(2) The duties under this section:

(a) ...

(b) apply whether or not the plant or substance is exclusively designed, manufactured or supplied for use by people at work, and

(c) extend to the design, manufacture or supply of components for, or accessories to, any plant for use by people at work, and

...

(3) In this section, manufacture plant includes assemble, install or erect plant." (Emphasis in s 11(1) added.)

30 Section 12 of the OHS Act provides that a person who contravenes, whether by act or omission, a provision of Div 1 of Pt 2 (including s 11) is guilty of an offence. The maximum penalty for a corporate first offender, at the relevant time, was $550,000 (s 12(b)).

31 Section 28 of the OHS Act provides, inter alia, that it is a defence to any proceedings for an offence against a provision of the Act if the person proves that it was not reasonably practical for him or her to comply with the provisions.

32 Proceedings for an offence against the Act are to be dealt with summarily: OHS Act, s 105(1); see also Industrial Relations Act 1996 ("IR Act"), s 168(1). Part 5 of Ch 4 of the Criminal Procedure Act 1986 applies to summary proceedings in the Industrial Court: IR Act , s 168(2). (Part 5, Ch 4, provides for the exercise of summary jurisdiction by the Supreme Court and other courts.)

33 At the time the prosecution in the present case was instituted the Industrial Relations Commission Rules 1996 ("1996 Rules") were in force. (Those Rules have now been repealed and replaced by the Industrial Relations Commission Rules 2009, which commenced on 1 February 2010.) Rule 217B of the 1996 Rules provided that proceedings in the Industrial Court for an offence had to be commenced, unless otherwise provided, by an application for an order under s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967. (The 1967 Act was repealed by the Justices Legislation Repeal and Amendment Act 2001, with effect from 7 July 2003. It appears that r 217B of the Industrial Relations Commission Rules was never amended to delete the reference to the 1967 Act and to substitute a reference to Part 5 of Chapter 4 of the Criminal Procedure Act 1986, which also came into force on 7 July 2003. However it seems that r 217B, following the repeal of the 1967 Act, is to be taken as referring to Pt 5 of Ch 4 of the Criminal Procedure Act 1986: Interpretation Act 1986, s 68; GPI (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157, at [59] - [60], per Basten JA (with whom Allsop P agreed).) The application had to state, among other things, the Act and section under which the defendant was alleged to have committed an offence and " the nature of the offence alleged ".

34 An appeal to the Full Bench in respect of criminal proceedings taken before the Industrial Court is subject to the provisions of the Criminal Appeal Act 1912: IR Act, s 196.

35 Section 179 of the IR Act provides as follows:

"(1) A decision of the Commission (however constituted) is final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal.

(2) Proceedings of the Commission (however constituted) may not be prevented from being brought, prevented from being continued, terminated or called into question by any court or tribunal.

(3) This section extends to proceedings brought in a court or tribunal in respect of a decision or proceedings of the Commission on an issue of fact or law.

(4) This section extends to proceedings brought in a court or tribunal in respect of a purported decision of the Commission on an issue of the jurisdiction of the Commission, but does not extend to any such purported decision of:

(a) the Full Bench of the Commission in Court Session, or

(b) the Commission in Court Session if the Full Bench refuses to give leave to appeal the decision.

(5) This section extends to proceedings brought in a court or tribunal for any relief or remedy, whether by order in the nature of prohibition, certiorari or mandamus, by injunction or declaration or otherwise.

(6) This section is subject to the exercise of a right of appeal to a Full Bench of the Commission conferred by this or any other Act or law.

(7) In this section:

decision includes any award or order."

THE CHARGE

36 The prosecution against SDA was instituted by an inspector authorised to do so by s 106(1)(c) of the OHS Act . The charge alleged that SDA:

"between about 3 September 2001 and 24 June 2002 at or about its place of business ... did design plant in the course of a trade, business or other undertaking, namely plant related to gates (gate plant), for use by persons at work, which it failed to ensure was safe and without risks to health when properly used, contrary to section 11(1)(a) of the Occupational Health and Safety Act 2000."

37 The particulars of the charge were as follows:

"1. [SDA] designed the gate plant by making and/or issuing drawings of the gate plant.

2. The issued drawings were contained in Drawing no 1047-S4.00 Revisions D and E.

3. [SDA] designed the gate plant for the concrete batching plant being constructed by Bonfoal Pty Limited at ... Mascot ... (premises).

4. During 2003 the concrete batching plant was operated by Hy-Tec Industries Pty Limited (Hy-Tec) at the premises.

5. The gate plant was installed on the western side of the premises (west gate).

6. The gate plant was used by employees of Hy-Tec at work.

7. At all material times Mr Jason Sheath was an employee of Hy-Tec.

8. At close of business, if Mr Sheath was the last employee at the premises, part of his duties included closing the gates to the premises.

9. At the close of business on 14 October 2003, Mr Sheath attempted to close the western leaf of the west gate. The electronic system to close the west gate failed to operate and Mr Sheath began to close the western leaf of the west gate manually.

10. Mr Sheath was assisted in closing the western leaf of the west gate manually by Ms Melissa Maybury.

11. Whilst Mr Sheath and Ms Maybury were trying to close the western leaf of the west gate manually, the western leaf passed through the midpoint of the gate opening and out of its portal, falling on Ms Maybury and causing her fatal injuries.

12. There was a risk of the western leaf of the west gate falling on either Mr Sheath or Ms Maybury.

13. The gate plant was not safe and without risks to health when properly used.

14. [SDA] failed to include in the design any or any adequate devices to prevent the western leaf of the west gate falling during manual operation.

15. By reason of [SDA's] omissions, persons were at risk of being injured (including fatally injured) whilst they were operating the west gate manually.

16. On 14 October 2003 Melissa Maybury was fatally injured and Jason Sheath was placed at risk of injury as a result of the defendant's omissions."

38 The Inspector applied for the issue of an order under s 246(1)(a) of the Criminal Procedure Act 1986 (within Pt 5 of Ch 4) requiring SDA to appear before the Industrial Court to answer the charge. An order to that effect was made on 28 March 2008.

FACTS

39 The facts were largely agreed between the prosecutor and SDA. The following statement of facts is taken from the judgment of the majority of the Full Bench (at [8]). While it is not in the same terms as the statement by Haylen J, it was not suggested that any differences were material:

"(a) Hannas Civil Engineering Pty Ltd ('Hannas') was appointed as the project manager for the construction of the concrete batching plant. Mr Peter Twomey was the project manager from August 2001 onwards. ...

(b) The construction of the plant included three sets of bi-sliding metal gates on Coward Street: one on the eastern side, one on the western side and a centre gate in the middle between the east gate and the west gate ('the gates'). Part of Hannas' duties included acting as the project manager for the design, construction and installation of the steel gates located on Coward Street.

(c) Each set of gates consisted of two gate leaves that opened in opposite directions along a track through the tunnel of the support portals. The gates were fitted with motorised driving units with switches to open and close the gates. The gates could also be operated manually. The west gate was the largest of the three gates and each gate leaf of the west gate weighed approximately 1340 kilograms. [SDA] notes that the gates were not constructed to be operated manually and were locked in position once the motor was installed, although the motor could be disengaged for manual operation.

(d) The brief from Hy-Tec ... was: 'Provide a steel bi-fold gate system that can be opened and closed via digital key pads adjacent to the gate or overridden from the control room together with electronic eyes for closure'.

(e) By letter dated 23 March 2001 [SDA] originally tendered to Hannas to provide structural design engineering services for the concrete batching plant. The gates were not part of the initial work for which the appellant was contracted as set out in the letter dated 23 March 2001.

(f) Damian Hadley, an associate director of [SDA], was employed by [SDA] as a structural engineer to perform structural design and to co-ordinate the day-to-day activities of [SDA]. Mr Hadley was a chartered professional engineer. Mr Hadley was answerable to Andrew Simpson .... Mr Hadley was the structural engineer who did most of the initial work.

(g) The structural design for the steel gates and steel frames that supported the gate was carried out later pursuant to an oral brief together with some drawings and written instructions from Mr Twomey. Mr Twomey says the design brief was for the design to be in accordance with the DA conditions and to do the structural design for an electrically operated gate system. Mr Hadley said that the design brief was to provide structural engineering services for the design and documentation of the gates. There was no specific brief to the appellant for manual operation, a backup system or stops. Mr Hadley said that the brief did not include the mode of operation of the gate. However there was no express prohibition on operating the gates manually.

(h) On 3 September 2001 SDA issued a further 'fee proposal' for additional works at the concrete batching plant, including 'structural steel gate design'. On about 12 November 2001, shortly after another meeting on 9 November 2001 at which the gates had been discussed, Mr Hadley sent a fax to Mr Twomey in which he stated, in part:

With this in mind I propose to proceed with the structural design and specify the track and rollers as proprietary items.

(i) Mr Hadley provided his first sketch of the structural elements of the gates on 13 November 2001. Following a further sketch and comments from Mr Twomey, Revision A of the 'Miscellaneous Steelwork drawings' was issued to Mr Twomey on about 19 December 2001. That drawing showed, in addition to some steelwork unrelated to the gates, the structural elements of the gates.

(j) Thereafter Mr Hadley provided further revisions of the same 'Miscellaneous Steelwork drawings', including Revisions D and E, which were the focus of the charge. Each revision of the drawing included the same structural elements of the gates. Mr Hadley supervised, approved and checked the drawings. Mr Twomey provided some comments and alterations in respect of SDA's drawings. Revision E was issued to Mr Twomey on about 24 June 2002, that being the end of the period to which the charge related. These structural drawings contain the design that it is alleged was unsafe.

(k) Gate stops were not incorporated in those drawings. No provision was made in the design for the gates to be operated manually or in the case of mechanical failure . The design shown on SDA's Miscellaneous Steelwork drawings does not address the issue of mode of operation of the gates. The only reference to the mode of operation of the gates is the note on the drawings, which refers to the need for coordination with the manufacturer of the gate motor.

(l) The design and construction of the gates ultimately involved the work of a number of separate entities, appointed and acting under the coordination and direction of Hannas and in particular Mr Twomey. The following entities were responsible for the design, supply and installation of the major components of the gates:

(i) SDA provided the structural design.

(ii) Lejah trading as Sunstate Consulting & Engineering ('Sunstate'), the company which designed and supplied the mechanical equipment for the concrete batching plant generally, designed the wheels and rollers for the gates, prepared the fabrication drawings for the gates and supplied, delivered and at least partly installed the gate steelwork.

(iii) Magic Door Industries Pty Ltd ('MDI') supplied and installed the operating equipment for the gates, including determining the particular motor and other operating equipment to be used.

(iv) Roofacade Pty Ltd ('Roofacade') supplied and installed the cladding, which was placed on the gate leaves.

(m) The fabrication drawings for the gates were completed by Sunstate by about 8 August 2002. Sunstate's fabrication drawings showed the specification of the type of wheels and type of rollers to be used in constructing the gates, the number and positioning of the wheels and rollers and the design of the brackets for each of the wheels and the rollers. Sunstate's fabrication drawings did not provided [sic] for gate stops. Sunstate followed the appellant's design in this respect. [SDA] noted that Keith Rowe, the Estimator for Sunstate stated that SDA's Miscellaneous Steelwork drawings did not refer to stops, and Mr Rowe never discussed that matter with Mr Twomey. Mr Rowe refers to those drawings as only "structural" outline drawings. There was no evidence that Mr Rowe was required to follow SDA's Miscellaneous Steelwork drawings in this respect.

(n) Sunstate then arranged for the fabrication of the steelwork for the gates, and for it to be delivered to the Mascot site. During October and November 2002 the gate steelwork was installed.

(o) MDI commenced installing the gate operating equipment on 12 November 2002. On the afternoon of 12 November 2002 one of the gate leaves of the centre gate moved through its portal and fell, narrowly missing one of MDI's installers.

(p) As a result of that incident it became apparent to Sunstate and Mr Twomey that physical stops were required on the gates. MDI said that they would not go back to the site until adequate stops were installed on the gate leaves.

(q) On 14 November 2002, and again on 16 December 2002, MDI sent Mr Twomey a facsimile strongly recommending that physical stops be installed, on both occasions expressly referring to the possibility of a fatality if that did not occur.

(r) Shortly after the near miss on 12 November 2002 some stops were fixed to some of the gate leaves, including apparently the bolted stop, which was on the western leaf of the west gate when it fell on 14 October 2003. SDA was not asked to, and accordingly did not, play any part in the specification, design or installation of the bolted stop.

(s) By December 2002 the construction of the concrete batching plant was substantially finished and Hy-Tec had entered into possession of the premises. After this time the gates had to be operated manually at times. Throughout 2003, failures in the automatic electronic functioning of all the gates, but most frequently, the west gate, were a regular occurrence. Hy-Tec employees closed the gates manually frequently and this required more than one employee as the west gate in particular was heavy. The usual practice with the west gate was to close the eastern leaf first.

(t) On 14 October 2003 a tragic incident occurred in which one of the gates fell on Melissa Maybury resulting in her death (fatal incident). Jason Sheath was the last employee of Hy-Tec present at the site and was responsible for closing the gates to the site. His friend Ms Maybury arrived at the concrete batching plant by car to transport him home. She had done this on previous occasions.

(u) Mr Sheath was attempting to close the bi-sliding metal gate on the western side of the premises. Mr Sheath was initially attempting to close the west gate electronically. The electronic system used to close the gates failed. Mr Sheath rang his supervisor Mr Hanna to ask him for the pin code for the drivers' room because the drivers had forgotten to close the room gate and told Mr Hanna he was having problems closing the gate and that he would get back to Mr Hanna with how he went with closing the gate.

(v) Mr Sheath disengaged the motor and commenced to close it manually. Mr Sheath initially tried to close the western leaf of the west gate. He experienced difficulty in moving the western leaf by himself. Mr Sheath had previously had assistance in closing the gate manually. Ms Maybury came to the assistance of Mr Sheath in manually closing the gates.

(w) At the time that Mr Sheath was attempting to close the western leaf of the west gate, the eastern leaf was still in the open position. While Mr Sheath and Ms Maybury were attempting to close the western leaf manually, as they manoeuvred the western leaf, the front edge of the gate leaf passed the midpoint of the driveway. It moved out of the supporting portals and fell onto Ms Maybury and caused her fatal injuries.

(x) The only available inference from the evidence is that there were only ever three stops attached to the six leaves of the gates at the concrete batching plant. The factual inspections made after the fatal incident show that no further stops were installed after November 2002 and that the western leaf of the west gate still had the bolted stop installed in November 2002. The bolted stop was grossly inadequate and incapable of providing the mechanical strength required to limit the travel of the gate, whether that travel was driven by the normal power system, electric motor and gear box that drove the gate, or through the manual operation of the gate leaf.

(y) Subsequent to the fatal incident, Mr Hadley on behalf of SDA designed gate stops, which were approved by Andrew Simpson. The design drawings were forwarded to Mr Proctor of Hy-Tec by Mr Hadley from [SDA] on 15 October 2003. The entire work of designing, fabricating and installing stops in both the opening and closing positions took just one day. Inspector Ching photographed these stops on 24 October 2003. [SDA] noted that there was no evidence of how long was required for those stops to be fabricated and installed.

(z) In designing the stops after the fatal incident, Mr Hadley was able to undertake relevant calculations to undertake the task such as the calculation of the load. As the gates could be operated manually as well as electronically, Mr Hadley determined the load that someone could push on the door manually and from that he allocated the velocity and calculated an impact load." (Emphasis added.)

JUDGMENT IN THE INDUSTRIAL COURT

First Instance

40 Ha ylen J delivered judgment on 15 December 2009. His Honour first considered the proper construction of s 11(1)(a) of the OHS Act . He observed (at [14]) that even under the more limited provisions of s 24 of the Occupational Health, Safety and Welfare Act 1986 (SA), considered by the High Court in Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6, 205 CLR 304, a designer of plant would be required to make inquiries to ascertain the purpose of the structure and to ensure that part of the designed structure would not " fall or break ".

41 Haylen J held (at 14) that s 11(1)(a) of the OHS Act required SDA to inquire as to the type of motor to be used for the gate and whether there was to be a manual override:

"After making the simple enquiry about how the gates were to be moved and finding that a manual override motor would or could be used, the designer, to comply with s 11(1), would either need to advise the client that a stop would be required to prevent the gate from drawing beyond the portal and falling with risk to safety, or, alternatively, specify a stop in the design either as part of the design or to be supplied as a proprietary line."

42 His Honour found (at [18]-[19]) that SDA:

• in designing the structural elements of the gate was designing " plant " for use by people at work; and

• was involved in the engineering design of plant in the course of its business.

43 His Honour noted (at [20]) that the principal focus of the case was on Particular 14, which alleged that SDA had failed to include in the design any or any adequate device to prevent the western leaf of the gate falling during manual operations. His Honour accepted expert evidence to the effect that SDA should have undertaken a risk analysis as part of the overall design process. Such an analysis would have concluded that reliance could not be placed solely on electronic or electrically operated systems and that provision would have to be made to ensure safety during the manual operation of the gate.

44 The primary Judge concluded (at [28] ff) that SDA was not entitled to ignore the use to be made of the gate or its method of operation on the basis that it had a limited role as designer of the structural elements of the gates. His Honour reached this conclusion, in part, by reference to the provisions of the Occupational Health and Safety Regulation which imposed particular obligations, inter alia, on designers of plant for use at work.

45 After considering matters not relevant to the present application, the primary Judge addressed SDA's causation argument. His Honour said this (at [50]-[51]):

"50. [SDA] then proffered another reason why the charge should be dismissed noting that the risk on which the prosecutor relied was the risk of the western gate falling on a person or employee whenever the gate was manually used because a substantial travel limiting device was not installed. [SDA] suggests that risk did not exist until the period when the gates were in use up to and including the accident in mid-October 2003. During that period the actual risk was that the gates would fall because the stop that had been installed immediately before the gates were commissioned for use was inadequate. [SDA] had absolutely no part in the design of that stop and there was no suggestion that [SDA's] design had any causal connection with the inadequacy of that stop. Accordingly, there was no connection between the risk that actually existed up to and on 14 October 2003 and [SDA's] design.

51 It was common ground that [SDA] did not include a stop in its design and strenuously asserted the appropriateness of not doing so having regard to what it submitted was its limited role as the structural engineer. The charge under s 11 centres upon its design and the omission of such a travel limiting stop. The risk to health and safety followed from adopting this design in the fabrication and installation of the gates. In relation to the designer's duty it mattered not that someone else designed and installed an inadequate stop after the defendant's plans were issued for construction. That event merely gave rise to the possibility of a breach by another entity. In addition, the prosecutor points out that the inadequate stop that had been installed was a consequence of the omission in [SDA's] design and its failure to specify an appropriate travel limiting device such as a stop. If such a device had been included in the design prepared by the defendant, then the occasion for the installation of an inadequate travel limiting device by others would not have arisen. It was submitted that this failure was a substantial or significant cause and/or materially contributed to the risk of injury to persons at work. On either approach, this further submission for [SDA] does not establish a case why the charge should be dismissed. [SDA's] argument in relation to this matter also ignores the different period particularised in the charge and the nature of the charge particularised."

46 His Honour found (at [54]) that SDA had breached s 11(1)(a) of the OHS Act as particularised in the charge:

"in particular, by its failure to include in the design of the gate plant any or any adequate devices to prevent the western leaf of the west gate falling during manual operations".

47 In a separate judgment delivered on 9 June 2010, Haylen J imposed the penalty of $185,000 on SDA. In the same judgment, his Honour convicted and imposed penalties on the other entities which had participated in the design, fabrication and installation of the gate.

Full Bench

48 On appeal to the Full Bench, SDA challenged the primary Judge's reasoning and conclusions on a number of grounds. By majority, the Full Bench dismissed the appeal on 25 February 2011.

49 The majority of the Full Bench rejected an argument by SDA that it should have been treated, not as a designer of the whole of the gate but merely as a designer of a component of the gate. Boland and Kavanagh JJ, in the course of rejecting that argument, referred to the decision of the High Court in Slivak v Lurgi . The majority then said the following (at [30]):

"As the majority [in Slivak v Lurgi ] stated, the requirement under the South Australian Act to ensure the design is safe when properly used is qualified by 'so far as is reasonably practicable'. There is no such qualification in s 11(1)(a) of the OHS Act. It is, therefore, a fortiori that the appellant had a duty to ascertain what use the gate plant would be put to and to take steps within its power as a designer to ensure safety."

50 Their Honours held that Haylen J had erred in relying on the OHS Regulation to determine whether SDA had contravened s 11(1)(a) of the OHS Act. However, the error was immaterial, since it was not necessary to rely on the OHS Regulation in order to decide that SDA had contravened s 11(1)(a) of the OHS Act. Their Honours said (at [74]) that:

"it is inherent in s 11(1)(a) that a risk assessment is required in order that hazards might be identified and risks assessed. It follows any risk that is identified would need to be controlled. In any event, the primary judge ... also relied, as he was entitled to, on the failure of [SDA] to take the steps referred to in the evidence of [the experts]."

51 Boland and Kavanagh JJ (at [82]) recorded SDA's submission on causation as follows:

"at the time of the accident on 14 October 2003, and at all times during the period that the gate was in use up to that accident, the risk of the gate falling on either Mr Sheath or Ms Maybury was not a risk occasioned by the absence of a stop, but was rather a risk occasioned by the inadequacy in the specification, design and installation of the bolted stop."

52 They accepted (at [90]) that the question of causation had to be decided:

"on the basis of whether the trial judge was correct in finding a causal connection between [SDA's] acts or omissions and the risk to Ms Maybury and Mr Sheath of being injured (including fatally injured) whilst they were operating the west gate manually on 14 October 2003."

53 Their Honours referred in some detail to a number of authorities on causation. However, the substance of their reasoning is contained in the following paragraphs:

"99. In the present case, the appellant failed to incorporate in its design of the gate plant, travel limiting devices that would avoid the risk of the gates coming free of the portals. An unknown person bolted a stop to the western leaf of the west gate and that stop failed when the gate was manually operated. Putting aside for the moment the intervention of the unknown person, if one were to apply the common sense test one would inevitably come to the conclusion that the appellant's failure to incorporate stops caused the risk. Under the "but for" test one would come to the same conclusion: but for the appellant's omission the risk would not have arisen. Further, if one were to apply the substantial cause test, or even the reasonable foreseeability test, the same conclusion would result.

100 Having regard then to the intervention of the unknown person bolting in place a stop that failed, it seems to us that common sense would suggest that the appellant's omission in failing to incorporate in the design the necessary travel limiting devices remained a substantial cause of the risk. [Their Honours then quoted from the primary judgment at [51], set out at [45] above.]

101 Even though it might be contended that the act of the unknown person in bolting an inadequate stop to the western leaf of the west gate was a cause of the risk, [SDA's] omission was a substantial factor in causing that risk to materialise. This was a circumstance where either one, that is, either the unknown person or [SDA] would have caused the risk anyway. It could not be said that the risk would never have eventuated if it had not been for the actions of the unknown person or that the actions of the unknown person were the sole cause of the risk . Moreover, if one were to apply the natural consequence test or the reasonable foresight of the consequences test it is apparent that the legal responsibility for creating the risk lay with the appellant.

...

106 [In March v E & MH Stramare Pty Ltd [1991] HCA 12; 171 CLR 506, at 517], Mason CJ discussed novus actus interveniens and gave an example as follows:

'Many examples may be given of a negligent act by A which sets the scene for a deliberate wrongful act by B who, fortuitously and on the spur of the moment, irresponsibly does something which transforms the outcome of A's conduct into something of far greater consequence, a consequence not readily foreseeable by A. In such a situation, A's act is not a cause of that consequence, though it was an essential condition of it. No doubt the explanation is that the voluntary intervention of B is, in the ultimate analysis, the true cause, A's act being no more than an antecedent condition not amounting to a cause.'

107 If one considers what his Honour said in that example in the context of what occurred in the present proceedings, the unknown person's act in bolting a stop to the gate did not transform the appellant's conduct in failing to design a stop 'into something of far greater consequence'. Nor was the consequence not readily foreseeable by the appellant. It was always foreseeable that in the absence of stops being designed in the first place, no stops would be affixed to the gate thereby creating a risk of the gate coming out of its portals and causing injury.

108 There can be no doubt that the appellant's failure in respect of the design of the gate plant created a risk to health and safety. The risk was present on 14 October 2003. It makes no sense that the appellant could be permitted to escape liability by contending that the risk it caused was negatived or nullified by a person fixing a faulty stop to the gate when the reason why it became necessary to install that stop was because of the appellant's omission in the first place.

109 If a builder erected an unsafe wall and a contractor was engaged to brace the wall because it was unsafe, but the brace failed to prevent the wall toppling over and injuring someone, it seems to us that both the builder and the contractor would be culpable. We do not see it being any different in this case."

54 Marks J dissented. His Honour stated (at [135]) that the particulars confined the charge to " what occurred on 14 October 2003 ". Accordingly, the unsafe nature of the plant and the risks to health, which his Honour considered to be at the heart of s 11 of the Act, were confined to what happened on that date.

55 Marks J identified (at [136]) the " fundamental question " to be whether or not the installation by someone else of a grossly inadequate bolted stop was exculpatory of SDA. Later in the judgment (at [157]) he refined the question as follows:

"whether or not the fact that the inadequate and inappropriately fixed bolted stop undertaken by someone else intervened so that it cannot be said that [SDA's] failure to include within the design a stopping mechanism relevantly caused the tragic circumstances which occurred on 14 October 2003."

56 His Honour concluded (at [190]) that the prosecution had not established that SDA's conduct, whether by act or omission, was " a sufficient cause in law of the incident of 14 October 2003 ". He therefore would have allowed SDA's appeal.

SUBMISSIONS

SDA's Submissions

57 The starting point for SDA's submissions was the decision of the High Court in Kirk, which authoritatively establishes that s 179 of the IR Act does not exclude the jurisdiction of the Supreme Court of New South Wales to grant relief in the nature of prohibition or certiorari for " jurisdictional error ". Mr Neil SC, who appeared with Mr Moorhouse for SDA, submitted that both Haylen J and the majority of the Full Bench had committed a jurisdictional error in the course of convicting, or upholding the conviction of SDA. As a consequence, relief in the nature of certiorari and prohibition should be granted to set aside the decision of the Industrial Court and to prohibit further proceedings against SDA on the charge that it had contravened s 11(1)(a) of the OHS Act.

58 Mr Neil submitted that whether Haylen J and the majority of the Full Bench had committed a jurisdictional error had to be assessed by reference to the particulars of the charge. He accepted that SDA might have been charged with a contravention of s 11(1)(a) of the OHS Act without the prosecutor necessarily tying the charge to the risk that existed on 14 October 2003, as distinct from some earlier time. Mr Neil also accepted that the charge and the particulars might have been read as alleging that the relevant risk existed at all times after the gate had been installed. However, he submitted that the particulars to the charge had been understood by the parties to allege that the relevant risk was that which existed on 14 October 2003. Since the case had been conducted in this way, it was an essential element in the offence as charged that SDA's design omission caused a risk to health and safety on 14 October 2003.

59 Mr Neil acknowledged that an erroneous finding of causation would not necessarily constitute a jurisdictional error. Depending on the circumstances, the finding might be characterised as an error of fact made within jurisdiction. However, he submitted that the error in the present case was jurisdictional because both Haylen J and the majority of the Full Bench had applied the wrong test.

60 According to Mr Neil, Haylen J correctly regarded the failure of SDA to include a stop mechanism in its design as a necessary precondition for the intervention of the unknown person who installed the inadequate stop that failed on 14 October 2003. Haylen J had erred in treating that fact as enough of itself to make SDA criminally responsible for the risk that the leaf of the gate would fall on 14 October 2003. In short, Haylen J had applied " but for " reasoning as a positive, sufficient and exclusive test of causation. That was an error of law.

61 Mr Neil submitted that the majority of the Full Bench had committed the same error. While the majority referred to the " common sense " test of causation and had referred to the need to show that the design failure was a substantial cause of the risk, in substance they had applied the " but for " test. The majority had adopted a " reflexive approach ". They had treated SDA's failure to include a stop in its design as a substantial cause of the risk that the gate would fall on 14 October 2003 simply because it was a causa sine qua non of the intervention by the third party that in truth gave rise to the risk. This was a fundamental misapprehension of the limits of the power of the Industrial Court to convict a person of an offence under s 11(1)(a) of the OHS Act .

62 Mr Neil accepted that even if the Industrial Court had committed a jurisdictional error, relief in the nature of prohibition would not be available unless this Court considered that no tribunal of fact applying the correct test could conclude that there was a causal connection between SDA's design failure and the risk to health and safety that existed on 14 October 2003. He submitted that a court applying the correct test would necessarily find that SDA's design failure was not a significant contributory factor to the relevant risk.

63 Mr Neil pointed to a number of matters supporting this contention:

• Mr Twomey (the project manager) and others involved in the design, construction and installation of the gates were alerted by MDI to the risk posed by SDA's design at the time the potentially disastrous incident occurred on 12 November 2002;
• Mr Twomey and Sunstate were fully aware that physical stops had to be installed and indeed MDI refused to return to the site until this safety measure was implemented;
• someone completely unconnected with SDA installed the stops, including the inadequate bolted stop which ultimately failed on 14 October 2003;
• SDA was not asked to participate and did not participate in the design and installation of the gates; and
• SDA did nothing whatsoever to influence the design or manner of installation of the failed stop.

64 In these circumstances, according to Mr Neil, the only conclusion available, if the correct test of causation was applied, to Haylen J and the Full Bench was that the risk that existed on 14 October 2003 was due to an act completely extraneous to any act or omission of SDA. Mr Neil submitted that the error committed by the Industrial Court was jurisdictional in the sense recognised by the High Court in Kirk. He acknowledged that this submission raises the question of whether an error of law by an inferior court that vitiates a critical factual finding should be characterised as a jurisdictional error. He submitted that it should be so characterised because a finding of guilt that is vitiated by a material error of law deprives the inferior court of jurisdiction to convict or punish the defendant.

65 In this case, the Industrial Court had misconstrued the nature of its power to convict SDA of an offence under s 11(1)(a) of the OHS Act. It had applied the wrong test (or failed to apply the right test) to determine whether the prosecution had established an essential element of the charge, namely that SDA's design failure had caused the risk to health and safety that existed on 14 October 2003. The Court had therefore convicted SDA of an offence when no such offence had been proved. The Industrial Court had misconstrued the OHS Act , thereby misconstruing the nature of its functions.

66 Mr Neill submitted that this Court should make orders in the nature of certiorari quashing both the orders made by Haylen J and those made by the Full Bench: Kirk , at [108]; Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252, at [73]-[77], per Spigelman CJ (with whom Beazley and Basten JJA agreed).

Prosecutor's submissions

67 The Prosecutor submitted that neither Haylen J nor the majority of the Full Bench had committed any error of law in their treatment of causation. Haylen J did not apply a simple " but for " test to support his factual finding of a causal relationship between the design failure and the relevant risk. Rather, his Honour found that SDA's failure to include an adequate stop mechanism in its design was a substantial cause of the risk to the health and safety of persons at the work place.

68 According to Mr Crawshaw SC, who appeared with Ms McDonald SC for the Prosecution, the majority of the Full Bench applied the tests of causation posited by Judges of the High Court and reached a factual conclusion that was open. Mr Crawshaw contended that SDA's submissions required the majority's language to be taken out of context.

69 In the alternative, the Prosecutor submitted that if there had been an error of law it was not a jurisdictional error. Mr Cranshaw pointed out that not every error of law is treated as jurisdictional. The finding on causation was one of fact and, unlike Kirk , did not involve any misconstruction of the OHS Act. In truth, SDA was seeking to have a rehearing on the issue of causation in the guise of an application for prerogative relief.

REASONING

Nature of the Risk

70 As has been seen, the present case involves a prosecution under s 11(1)(a) of the OHS Act. The High Court decision in Kirk was concerned with a prosecution under rather different legislation, namely ss 15 and 16 of the Occupational Health and Safety Act 1983 (" 1983 Act "), the predecessor to the OHS Act. Nonetheless, the joint judgment of six members of the High Court in Kirk makes several points that are relevant to the prosecution of SDA in the present case.

71 Sections 15 and 16 of the 1983 Act required every employer to ensure the health, safety and welfare at work of all the employer's employees and to ensure that non-employees were not exposed to risks to their health or safety arising from the conduct of the employer's undertaking. (See now OHS Act, s 8(1), (2).) The joint judgment in Kirk made the following points (among others) concerning a prosecution under s 15 and 16 of the 1983 Act:

• An employer could only be found to have contravened those provisions if it should have taken a measure to obviate an identifiable risk, but had not done so (at [12]).
• However, a contravention could be found without any harm actually having befallen an employee or other person (at [13]). It was enough that a risk to health and safety, such as a failure to guard dangerous machinery, be identified. (This conclusion is consistent with established authority: see Thiess Pty Ltd v Industrial Court of New South Wales , at [63]-[69], per Spigelman CJ, with whom Beazley and Basten JJA agreed).
• A statement of the offence had to identify the act or omission said to constitute a contravention of ss 15 and 16 of the 1983 Act (at [14]).
• The common law requires that a defendant be told not only of the nature of the offence with which he or she has been charged, but of the particular act, matter or thing which is the foundation of the charge. This includes the essential factual ingredients of the offence (at [28]).

72 In the present case, the charge against SDA alleged that SDA, between 3 September 2001 and 24 June 2002 designed plant related to gates for use by persons at work which it failed to ensure was safe and without risks to health when properly used. Although the charge did not say so, the date of 24 June 2002 was the date upon which SDA issued Drawing no 1047- S4.00 Revisions D and E, which was the design that failed to incorporate a stop mechanism. The charge followed the wording of s 11(1)(a) of the OHS Act and did not specify the precise nature of the risk created by SDA's design. Nor did it specify what measures SDA should have taken to obviate the risk.

73 The particulars provided in this case were, however, somewhat more informative than those provided by the prosecutor in Kirk . Particular 12 identified the risk created by SDA's design as the risk that the western leaf of the gate would fall on either Mr Sheath or Ms Maybury. Particular 14 alleged that SDA had failed to include in its design any or any adequate devices to prevent the western leaf of the gate falling during manual operation. Particular 15 alleged that by reason of SDA's omissions persons were at risk of being injured whilst they were operating the gate manually.

74 The particulars did not expressly state that the risk of injury created by SDA's design failure was that which existed on 14 October 2003. However, when the particulars are read as a whole, the references to the risk of the gate falling on Mr Sheath or Ms Maybury (Particulars 12, 16) suggest that the prosecutor intended to identify the relevant risk as that which existed on 14 October 2003, immediately before the accident which occurred on that date.

75 As I have noted, Mr Neil accepted that SDA might have been charged with an offence under s11(1)(a) of the OHS Act by reference to a risk that subsisted before 14 October 2003. Specifically, SDA might have been charged with designing a plant for use at work which it failed to ensure was safe and without risks to health as at 12 November 2002 (the date a leaf of the gate fell, narrowing missing one of the installers). Such a charge would have avoided the need to consider the significance of the actions of the unknown third party who installed an ineffective bolted stop shortly after the incident of 12 November 2002.

76 Haylen J approached the prosecution on the basis that the prosecutor had to establish a causal relationship between SDA's design failure and the risk to health and safety that existed on 14 October 2003. The majority of the Full Bench adopted the same approach. Their Honours apparently did so on the ground that the evidence as to risk was confined to the risk that existed when Mr Sheath and Ms Maybury attempted to operate the gate manually on 14 October 2003.

77 Marks J referred to the principle restated in Kirk , that a defendant is entitled to be told of the particular act matter or thing alleged as the foundation of the charge. His Honour interpreted the particulars as requiring the charge against SDA to be confined to " what occurred on 14 October 2003 " (at [135]). By this his Honour appears to have meant what he described (at [157]) as " the tragic circumstances which occurred on 14 October 2003". In other words, his Honour appears to have concluded that the prosecutor had to show that SDA's design failure caused the fatal accident itself, as distinct from the risk to health and safety that was present on 14 October 2003 irrespective of the accident that occurred on that day. If that is what his Honour meant, it is not correct.

78 It may be that there is little practical difference between the two formulations, given that the relevant risk to health and safety was that which existed on 14 October 2003. Nonetheless, in this Court it was common ground that Particular 15 identified the relevant risk created by SDA's design failure. This risk was that on 14 October 2003, persons were at risk of being injured (including fatally injured) while they were operating the gate manually. Accordingly, the prosecutor had to establish that SDA's design failure was a substantial cause of that risk.

Authorities

79 The Full Bench discussed a number of authorities dealing with causation. For present purposes it is sufficient to refer to four authorities, two of which were apparently not drawn to the attention of the Industrial Court. These cases demonstrate the difficulty of formulating principles relating to questions of causation at other than a high level of generality. They also demonstrate the need to analyse causation by reference to the particular factual circumstances of each case, having regard to the subject, scope and purpose of any relevant legislation.

March v Stramare

80 March v Stramare (E & MH) Pty Ltd [1991] HCA 12; 171 CLR 506, was a civil case, involving a claim for damages for personal injuries arising out of a motor vehicle accident. The accident occurred when an intoxicated driver of a motor vehicle collided with an illegally parked, but well illuminated, truck. The driver suffered injuries. The question before the High Court was whether the trial judge had been correct to find that the negligence of the truck driver was causally related to the injuries sustained by the driver.

81 Mason CJ, with whom Gaudron and Toohey JJ agreed, did not accept (at 508) that the:

"' but for ' ( causa sine que non ) test ever was or now should become the exclusive test of causation in negligence cases."

His Honour pointed out (at 509) that the legal concept of causation differs from philosophical or scientific notions of causation. In law:

"problems of causation arise in the context of ascertaining or apportioning legal responsibility for a given occurrence .... [A]t law, a person may be responsible for damage when his or her wrongful conduct is one of a number of conditions sufficient to produce that damage."

82 Mason CJ went on to explain (at 512) that the elimination of contributory negligence as a complete defence to an action in negligence meant that the courts were no longer constrained to find a single cause for a consequence. In modern times:

"courts readily recognise that there are concurrent and successive causes of damage on the footing that liability will be apportioned as between the wrongdoers."

83 Mason CJ said (at 514) that the law's recognition that concurrent or successive tortious acts may each cause a plaintiff's injuries is reflected in the requirement that a plaintiff must show that his or her injuries are caused or materially contributed to by the defendant's wrongful conduct. The common law approach is that the cause of a particular occurrence is a question of fact to be determined by the application of common sense to the facts of a case (at 515). His Honour accepted value judgments may have a role to play in determining whether causation has been established.

84 Mason CJ acknowledged that the " but for " test has an important role to play as a negative criterion of causation (at 515-516). But if applied as an exclusive criterion of causation it yields unacceptable results. He gave as an example (at 516) the case where two or more acts or events are each sufficient to bring about the plaintiff's injury. The application of the " but for " test would mean, contrary to common sense, that neither is the cause of the injury.

85 Mason CJ considered (at 517) that the " but for " test also does not give a satisfactory answer in those cases in which a supervening cause ( novus actus interveniens ) is said to breach the chain of causation. An example is where a negligent act by A sets the scene for B's deliberately wrongful act which converts the outcome of A's conduct into something much more serious that was not readily foreseeable. In that situation A's conduct is not a cause of the ultimate result, although it can be regarded as an essential pre-condition. However, even the intervention of a deliberate and voluntary act does not mean that the plaintiff's injuries are not a consequence of the defendant's negligent conduct. The causal relationship may be established if, for example, the defendant is under a duty to guard against the risk of injury from deliberate or voluntary conduct (at 517-518).

86 Applying these principles, Mason CJ had no difficulty in concluding (at 518-519) that the negligence of the intoxicated plaintiff was not a supervening cause when it was the defendant's conduct that generated the very risk of injury resulting from the plaintiff's negligence:

"In such a situation, the defendant's negligence satisfies the 'but for' test and is properly to be regarded as a cause of the consequence because there is no reason in common sense, logic or policy for refusing to so regard it."

Allianz v GSF

87 Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; 221 CLR 568, was another civil case. In that case (which was not referred to by the Full Bench), a mechanical unloading system on a container-carrying truck became inoperative. An employer directed an employee to manually unload a heavy container from the truck. The employee was injured. The High Court allowed an appeal against a finding that the defect in the truck was causally related to the employee's injuries.

88 The decision turned in part upon the particular language of the relevant legislation. However, the joint judgment of Gummow, Hayne and Heydon JJ pointed out (at 596-597, [96]-[97]) that questions of causation are not to be determined by common sense alone. Rather the starting point is to identify the purpose to which the question is directed. Their Honours observed (at 597 [99]) that the case law construing s 82 of the Trade Practices Act 1974 (Cth) emphasizes that causation in relation to a particular statutory regime is to be understood by reference to the statutory subject, scope and purpose. See also at 586 [54], per McHugh J. The present case involves a question of causation in a prosecution under the OHS Act, the key objects of which have already been set out (at [28] above).

Royall

89 In Royall v The Queen [1991] HCA 27; 172 CLR 378 , a question of causation arose in a prosecution for murder. The victim had fallen from a sixth floor bathroom window. The Crown's case was that the accused murdered the deceased in one of three ways: he pushed or forced her out of the window; she fell from the window as she attempted to avoid a violent attack in the bathroom; or she jumped from the window because of a well-founded and reasonable apprehension that if she remained in the bathroom she would be subjected to life-threatening violence (at 382-383, per Mason CJ). It was the third of these alternatives that required particular attention.

90 Six members of the Court approved the statement of Burt CJ in Campbell v The Queen [1981] WAR 286, at 290; (1980) 2 A Crim R 157, at 161, that it is:

"enough if juries [are] told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter"

(at 387, per Mason CJ; at 411-412, per Deane and Dawson JJ; at 423, per Toohey and Gaudron JJ; at 441, per McHugh J).

91 Members of the High Court formulated a variety of tests to determine whether causation had been established (or that the jury could have found to have been established) in the circumstances of Royall. Mason CJ said (at 389) that the question was whether the conduct of the accused induced in the victim a well-founded apprehension of physical harm such as to make it a natural (or reasonable) consequence that the victim would seek to escape and the victim was injured in the course of attempting to escape. Deane and Dawson JJ adopted (at 410) a similar approach.

92 Toohey and Gaudron JJ considered (at 424) that whether an act of the accused caused the death of the victim was a question of objective fact. In their view (at 425), a jury should be told that whether an act of the accused caused the victim's death is to be determined by applying their common sense to the facts as they find them. However, the jury can also be told that if the victim's reaction to the accused's conduct was " disproportionate to the act or was unreasonable " the claim of causation is broken.

93 Brennan J said (at 398) that the criminal responsibility of an accused, where the final fatal step is taken by the victim, depends on the reasonableness or proportionality of the victim's attempt at self-preservation. His Honour preferred (at 399) a test that asks whether the accused foresaw the reaction of the action and, if not, whether the reaction would have reasonably been foreseen by an ordinary person.

94 McHugh J, following an extensive discussion of the case law, concluded (at 448) that the law governing causation is

"an inconsistent and unsatisfactory state in cases where harm to the victim has occurred because of the subsequent acts or omissions of the victim or a third party."

95 Ultimately, McHugh J opted (at 449) for a reasonable foresight test over the " natural consequence " or " operating and substantial cause " tests. In his opinion (at 451):

"an accused should not be held to be guilty unless his or her conduct induced the victim to take action which resulted in harm to him or her and that harm was either intended by the accused or was of a type which a reasonable person could have foreseen as a consequence of the accused's conduct".

96 The various formulations in Royall were directed to resolving the particular question of causation that arose in that case. In the result, the Court unanimously upheld the conviction. However, the circumstances of the case were very different from the present. In Royall , the question was whether a murder conviction should be upheld where the victim had died as the result of attempting to escape what she thought was life-threatening violence. In the present case, the question facing the Industrial Court was whether SDA's negligent design failure was causally related to a risk of injury at a work place some 16 months after the design had been handed over. In Royall, it was the victim's own conduct that was said by the accused to have broken the chain of causation. In the present case, SDA relied on the intervention by a third party who unsuccessfully attempted to eliminate the risk that had been created in the first place by SDA's negligent design.

Arulthilakan

97 The necessity to deal with the question of causation by reference to the particular circumstances of the case is illustrated by Arulthilakan v The Queen [2003] HCA 74; 78 ALJR 257, also not referred to by the Full Bench . In that case, the two appellants were convicted of murder. They and a co-accused had decided to steal a mobile phone from two passers-by and to use force if required. One appellant had a knife and the other a cosh, while the co-accused, as each of the appellants knew, had his own knife. The co-accused used his knife to stab the victim. He did so after the victim refused to hand over the mobile phone and after a fight had taken place, involving the appellants, the co-accused and a companion of the victim.

98 The defence case was that the stabbing of the victim was an independent act by the co-accused, undertaken in the heat of the affray, and after the attempted robbery had ceased. The jury rejected the defence.

99 The trial judge correctly told the jury that the crime of statutory murder under South Australian law is committed if death results from an intentional act of violence perpetrated while acting in the course of an armed robbery. His Honour identified the intentional act as the presentation of a knife by the co-accused during the course of the robbery for the purposes of intimidation. The trial judge's instructions on causation included the following passage:

"The next question is whether the act of violence caused [the victim's] death. Ladies and gentlemen, the law takes a commonsense view about causation. It looks to see if there is a causal link or a causal connection between one act and another. Did one act cause another to occur? The act does not have to be the sole cause of the other act occurring. It is enough if it is a substantial cause. It is enough if it is shown that, but for that one event, all the other events would not have happened as they did. " (Emphasis added.)

100 The appellants submitted in the High Court that the last sentence in the quoted passage adopted a " but for " test of causation and, on the authority of Royall and other cases, therefore constituted a misdirection. The High Court, by a majority of five to one, rejected the submission.

101 The joint judgment of the majority pointed out (at 264 [30]) that the facts of Royall, where the victim died as the result of her own actions as she attempted to escape a violent assault, were " far removed " from the facts of the case before them. Their Honours said (at 265 [35]) that:

"One of the dangers of a 'but for' test of causation is that, in some cases, it is capable of indicating that a negligible causal relationship will suffice, but that was not a realistic risk in the present case, especially where the trial judge, in the sentence preceding the sentence that is now criticised, referred to 'a substantial cause'. The concluding sentence in the third of the paragraphs quoted above could not fairly be understood as qualifying the previous sentence. The two sentences were plainly intended to be read together....

On the prosecution case, as it was left to the jury, what the trial judge described as 'the introduction [by the co-accused] of the knife into the affray' was clearly capable of being regarded as a substantial cause of the death of [the victim], not just because, if [the co-accused] had been unarmed, he could not have stabbed [the victim], but because this was an armed robbery, accompanied by the obvious possibility of resistance and violent struggle. The trial judge made that clear."

102 Arulthilakan illustrated that jury directions need to be understood in context. An appellate court will not seize on a statement in isolation from its context in order to attribute a misdirection to a trial judge. Just as the High Court was not prepared to read the jury directions in Arulthilakan as adopting a simple " but for " test of causation, so care must be taken not to interpret the judgment of the majority of the Full Bench in the present case as adopting such a test if a reading of the judgment as a whole does not support that interpretation.

Did the Majority of the Full Bench Err in Law?

103 The prosecutor, in order to convict SDA of a contravention of s 11(1)(a) of the OHS Act, had to establish that there was a causal relationship between SDA's design failure and the risk to health and safety that existed on 14 October 2003: Kirk, at 560 [32]. As I have indicated, the Full Bench of the Industrial Court accepted that the prosecutor bore the burden of demonstrating causation in this sense. Unlike Kirk, there was no difficulty in identifying the actions that, on the prosecution's case, SDA should have taken to obviate the risk that a leaf of the gate would fall if the gate were to be operated manually. As Haylen J and the Full Bench found, SDA should have prepared and delivered a design that included an effective stop mechanism that would prevent the leaf falling in such circumstances.

104 The Full Bench analysed in some detail the principles of causation. Their Honours cited (at [91]) the judgment of Walton and Boland JJ in Newcastle Wallsend Coal Co Pty Ltd v Workcover Authority (NSW) (Inspector McMartin) [2006] NSWIRComm 339; 159 IR 121, at [301], for the following propositions (among others):

• the prosecution must establish a relevant failure on the part of the defendant and a causal nexus between the defendant's acts or omissions and the consequent risk to health and safety;
• causation has to be viewed in a common sense way; and
• it is not necessary that the defendant's act or omission be the cause of the risk and it is enough that the acts or omissions were a substantial cause of the risk viewed in a common sense and practical way.

105 The majority referred (at [94] ff) to the judgments in Royall and correctly recorded that the members of the Court in that case, although endorsing the observation of Burt CJ in Campbell v The Queen, had formulated the test of causation in various ways. The majority expressly cited the observations of McHugh J (at 449) as to the approach to be taken where the defence of novus actus interveniens is raised in a criminal case, including his Honour's warning against the use of the " but for " test in such a case.

106 The majority relied (at [102]) on the analysis of Mason CJ in March v Stramare for the proposition that more than one person may contribute to the creation of a risk. They also quoted observations of Lord Reid in Stapley v Gypsum Mines Ltd [1953] UKHL 4; [1953] AC 663, cited by Deane J in March v Stramare, at 523-524. Lord Reid warned (at 681) that:

"One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally."

107 Mr Neil made no criticism of the principles stated by the majority of the Full Bench. His proposition was that when their Honours came to determine the question of causation, they simply applied a " but for " test. This contention implies that their Honours, having stated the relevant principles carefully, overlooked them when concluding that SDA's design omission was causally related to the risk to health and safety that existed on 14 October 2003. In my opinion, the judgment of the majority of the Full Bench cannot be read in this way.

108 Their Honours pointed out (at [99]) that if the intervention of the unknown third party is put to one side, causation would be established regardless of which test were to be employed. So much is non-contentious.

109 Their Honours then said (at [100]) that common sense would suggest that notwithstanding the intervention of the unknown person who installed an inadequate stop mechanism, SDA's design omission remained a substantial cause of the risk that existed on 14 October 2003. Their Honours' reference to Haylen J's reasoning (at [51], set out at [45] above) was intended to make the point that SDA's failure to include a stop mechanism in its design created a risk to health and safety at a work place that would continue unless and until someone eliminated the risk by installing an appropriately designed and adequate stop mechanism. That appears to be what Haylen J meant when he said that if a proper stop device had been included in the original design, the occasion for the installation of an inadequate device by the unknown third party would not have arisen. It may have been a relatively straightforward matter to install an effective stop mechanism but in the absence of a design for such a mechanism there was obviously a risk (as events demonstrated) that the attempts to remedy the design defect would prove to be ineffective.

110 The majority accepted (at [101]) that the actions of the unknown third party might also be regarded as one cause of the risk to health and safety that existed on 14 October 2003. However, their Honours found that SDA's design omission " was a substantial factor in causing that risk to materialise ". Their Honours pointed out that this was not a case in which the risk would never have eventuated had it not been for the actions of the third party. In other words, the majority of the Full Bench took into account that SDA's design failure created the very risk to health and safety that required the positive and competent intervention of a third party to eliminate. It could not be said that the risk would never have eventuated had it not been for the actions of the third party. Moreover, on the findings of the majority of the Full Bench, it was reasonably foreseeable that in the absence of a proper design for a stop mechanism, the intervention might turn out to be futile or ineffective (as indeed occurred).

111 The majority's observation (at [108]) that it made no sense that SDA should escape liability by contending that the risk it created was nullified by a person fixing a faulty stop mechanism to the gate, has to be read in context. Their Honours were referring to the point made earlier, namely that the absence of a satisfactory design created a risk to health and safety that would not be eliminated unless a third party intervened by installing an effective stop mechanism. The absence of a design for an appropriate mechanism increased the likelihood that if a third party did endeavour to eliminate the risk created by the inadequate design, the intervention would prove to be ineffective. In my view, their Honours were also taking into account the principle stated by Burt CJ in Campbell v The Queen, that the purpose of the inquiry into causation is to attribute legal responsibility in a criminal matter. Their Honours were clearly conscious of the principle stated in Allianz , that such an inquiry must take into account the subject, scope and purpose of the legislation. In this case, the objects of the legislation included promoting health and safety at a place of work and ensuring that risks to health and safety posed by the inadequate design of plant are identified and eliminated.

112 In the same way, the reference in the judgment (at [109]) to an unsafe wall has to be understood in context. I do not think that their Honours were intending to say that it is enough to establish criminal liability that a risk would not have materialised but for the acts or omissions of the defendants. They were merely intending to say that, depending on the circumstances, the fact that each of two acts or omissions can be said to cause a particular risk to materialise, does not mean that neither is causally related to the risk. If a wall is negligently constructed so that it is at risk of collapse, the builder's negligence may be causally related to a risk to health and safety even if in the meantime a third party has unsuccessfully attempted to shore up the wall.

113 In my opinion, the majority of the Full Bench did not apply a simple " but for " test to determine whether the prosecutor had established that SDA's negligence was causally related to the risk to health and safety that existed on 14 October 2003. When the judgment is read as a whole, it seems to me clear that their Honours appreciated that SDA's design failure had to be a substantial cause of the relevant risk. Their Honours pointed out that the High Court had used different language in different cases to describe the test of causation, but correctly concentrated their attention on the particular facts of the present case. Accordingly, no error has been shown in the majority's exposition of the legal principles to be applied in determining whether SDA's design failure caused the risk to health and safety on 14 October 2003 as alleged in the particulars to the charge.

Was the Finding on Causation Open?

114 As I have noted, Mr Neil accepted that relief in the nature of prohibition would not be available unless this Court concluded that, if the correct test had been applied, a finding of causation was not open. Mr Neil further acknowledged that if such a finding was open, this would be (at the least) a powerful discretionary reason to withhold relief, even if the Industrial Court had applied the wrong test.

115 In my opinion, what has been said so far demonstrates that it was well open both to Haylen J and the majority of the Full Bench to conclude that SDA's design failure made a material or substantial contribution to the risk to health and safety that existed on 14 October 2003. It must be remembered that the question of causation is to be determined after giving due weight to the subject, scope and purpose of the OHS Act. As has been seen, these objects include securing the health and safety of people at a place of work and ensuring that risks to health and safety are eliminated.

116 The majority of the Full Bench recorded the matters on which SDA relied to support its novus actus interveniens defence. SDA was correct to point out that the risk to health and safety created by its design failure had been appreciated by others involved in the construction of the gate no later than November 2002. SDA also correctly pointed out that if the unknown third party had acted competently, the risk to health and safety would have been eliminated and that, in any event, SDA played no part in designing the inadequate mechanism that was ultimately installed.

117 Nonetheless, SDA's design omission created the risk that, if the gate was designed in accordance with SDA's specifications (as it was), it would present a risk to health and safety. This is not a case where a design failure created a negligible risk or a risk of minor injury and then being converted by the deliberate act by a third party into a much more serious risk. Nor is it a case where a design omission created an opportunity for a third party to create quite a different risk to health and safety. The risk to health and safety that existed on 14 October 2003 was precisely the risk that was created by SDA's design failure. The fact that a third party had an opportunity to eliminate that risk but did not do so successfully means that someone else also contributed to the existence of the risk. That does not mean that the Industrial Court was precluded from finding that SDA's design failure substantially contributed to the risk.

118 It was open to Haylen J and the majority of the Full Bench to find that SDA's design failure made a substantial contribution to the existence of the risk on 14 October 2003. It enhances the objectives of the OHS Act to find that a designer whose defective design creates a risk to health and safety should not escape criminal liability because the consequences of its negligence might have been obviated had a third party intervened in a competent manner.

119 In my opinion, SDA has not made out its submission that if the correct principles of causation were applied, a court could not find that SDA's design failure was causally related to the risk to health and safety that existed on 14 October 2003.

CONCLUSION

120 SDA has not established that either Haylen J or the majority of the Full Bench erred in law. Accordingly no question arises as to whether any error committed by Haylen J or the majority of the Full Bench can be characterised as a jurisdictional error justifying the grant of relief in the nature of certiorari.

121 Even if I had concluded that Haylen J had erred in law and that his error was jurisdictional in character, I would have concluded that the majority of the Full Bench did not commit any such error. In that situation, as Basten JA explains in his judgment, it is at least doubtful whether SDA would be entitled to orders quashing Haylen J's decision. In any event, as a matter of discretion I would not have made orders in the nature of certiorari. SDA would have had the benefit of an appeal in which the Full Bench stated and applied the correct principles in order to determine the issue of causation. I do not think that Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141, would require a different conclusion on the question of discretion. In the situation I have postulated, SDA would not have been denied the possibility of a successful outcome because of the jurisdictional error committed (hypothetically) by Haylen J.

122 It is not appropriate to consider whether, if SDA had made out that the Industrial Court committed an error of law, the error was jurisdictional in character. The decision in Kirk gives rise to a number of questions as to whether an error made by an inferior court should be classified as jurisdictional. These questions should be left to a case in which they must be decided.

123 SDA's application for relief under s 69 of the Supreme Court Act must be

dismissed, with costs.

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Decision last updated: 30 September 2011