Industrial Relations Commission New South Wales

• Medium Neutral Citation: InterCoast Refrigerated Transport Pty Ltd (in Liquidation) v Inspector Batty (WorkCover Authority of New South Wales) [2013] NSWIRComm 12
• Hearing dates: 29 November 2012
• Decision date: 21 February 2013
• Jurisdiction: Industrial Court of NSW
• Before: Walton J, Vice-President; Haylen J; Staff J

Decision

The appeal is dismissed and the appellants shall pay the costs of the respondent, as agreed, or, alternatively, as assessed.

• Catchwords: APPEAL - OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 8(1) - a first instance finding made of unsafe system of work - repairs being made to prime mover and trailers with assistance of driver - prime mover rolls over inadequate wheel chocks - driver killed in attempting to stop prime mover - failure to direct drivers not to participate in repairs and to stay clear of vehicle - appeal raised matters not raised at first instance and focuses on accident not the particularised risk - directions capable of being understood - driver participating in repair work when performing work normally undertaken by contracted service provider - appeals dismissed
• Legislation Cited: Occupational Health and Safety Act 2000
• Cases Cited: Banque Commerciale S.A., en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279; CI & D Manufacturing Pty Ltd (1995) 60 IR 149; Coulton v Holcombe (1986) 162 CLR; Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'ng) [1999] 90 IR 432; Haynes v CI & D Manufacturing Pty Ltd (1995) 60 IR 149; Inspector Batty v InterCoast Refrigerated Transport Pty Ltd (No 2) [2012]NSWIRComm 113; Inspector Batty v InterCoast Refrigerated Transport Pty Ltd [2012] NSWIRComm 55; Kondis v State Transport Authority (formerly Victorian Railways Board) (1984) 154 CLR 672; Tyson v Brisbane Market Freight Brokers Pty Ltd [1994] 68 ALJR 304; WorkCover Authority (NSW) (Inspector Maddaford) v Coleman (2004) 138 IR 21
• Category: Principal judgment
• Parties: Intercoast Refrigerated Transport Pty Ltd (in Liquidation) (First Appellant); Anthony Francis Morfea (Second Appellant); Inspector Ian John Batty (WorkCover Authority of New South Wales) (Respondent)
• Representation: M J Kimber SC with M K Scott of counsel (Appellants); S Crawshaw SC with A M Mitchelmore of counsel (Respondent); Lander & Rogers Lawyers (Appellants); Criminal Law Practice, Legal Group,; WorkCover Authority of New South Wales (Respondent)
• File Number(s): IRC 821 of 2012

Decision under appeal

• Citation: Inspector Ian John Batty v Anthony Francis Morfea [2012] NSWIRComm 55; Inspector Ian John Batty v Intercoast Refrigerated Transport Pty Ltd [2012] NSWIRComm 55
• Date of Decision: 2012-06-28 00:00:00
• Before: Kavanagh J
• File Number(s): IRC 1260 of 2010; IRC 1263 of 2010

Judgment

BACKGROUND

1 InterCoast Refrigerated Transport Pty Ltd (in Liquidation) ("InterCoast") and its director, Mr Anthony Morfea ("Mr Morfea") have appealed their conviction for a breach of s 8(1) of the Occupational Health and Safety Act 2000 ("the Act"): Mr Morfea's conviction arises through the operation of s 26(1) of the Act.

2 Those convictions arose out of a workplace fatality in mid-November 2008. The corporate defendant was the employer of a significant number of truck drivers in the conduct of its transport business. On the day in question, Mr Gregory Phillips was driving a prime mover with two trailers referred to in the proceedings below as a "B-Double". When Mr Phillips was driving this heavy combination vehicle near Hexham he was directed to a Road Traffic Authority ("RTA") inspection facility close to Twelve Mile Creek. At this inspection facility his truck load was inspected without incident but it was discovered that three suspension airbags on the trailer were deflated and a defect notice was issued on the vehicle. It was also revealed that Mr Phillips had insufficient rest breaks and was required by the RTA Inspectors to take a seven-hour break before resuming his journey.

3 Mr Phillips reported these developments to his supervisor and arrangements were made for repairs to be carried out in relation to the deficient airbags: these repairs were to be carried out by a company independent of the corporate appellant. Shortly stated, Mr Phillips provided assistance to the person performing the repairs and during the course of so doing, the truck moved forward and rolled over inadequate wheel chocks that had been supplied by the repairer. Mr Phillips, at the request of the repairer, had released the brakes on the truck. In an apparent attempt to stop the truck running away, Mr Phillips ran from near the rear of the trailers and attempted to apply the brakes. During the course of this attempt he was crushed between the door of the prime mover and an adjacent steel light pole located on the RTA facility site.

4 In the first instance proceedings (Inspector Batty v InterCoast Refrigerated Transport Pty Ltd [2012] NSWIRComm 55), Kavanagh J found the corporate defendant and its director not guilty of charges brought under

s 8 (2) of the Act but found both appellants guilty of a breach of s 8(1) of the Act. The charges under s 8(1) raised a number of issues, including alleged defects in the pre-employment screening of employees, failures in relation to fatigue management, failures in relation to the provision of information, instruction and training regarding fatigue management and failings in relation to supervision. Her Honour found that the alleged breaches in relation to these matters were not established and those particulars were dismissed.

5 Kavanagh J, however, found proved the charges in relation to the system of work concerning the conduct of roadside repairs, namely, that the appellants failed to provide a system of work in relation to such repairs of long haul heavy combination vehicles that was safe and without risk to health. Her Honour found, as particularised, that the appellants should have instructed employees, including Mr Phillips, that long haul drivers were not to participate in the roadside servicing or repair of the appellants' long haul heavy combination vehicles and, further, should have instructed its employees that their long haul drivers were to remain clear of the vehicle and not to approach the vehicle while roadside servicing and/or repairs were being conducted.

6 Her Honour retired from the Court shortly after delivering judgment on liability and the sentencing was conducted by Boland J, President (Inspector Batty v InterCoast Refrigerated Transport Pty Ltd (No 2) [2012] NSWIRComm 113). His Honour imposed penalties on both appellants.

THE FIRST INSTANCE JUDGMENT

7 In order to fully appreciate the nature of the matters raised on appeal, it is necessary to set out the relevant pleadings and the manner in which her Honour dealt with the alleged breaches.

8 The particulars regarding the system of work concerning roadside repairs were in the following terms:

Particulars of the company's failings in relation to systems of work with respect to the conduct of roadside repairs

6. The company failed to provide a system of work in relation to the performance of roadside service and/or repair of the company's long haul heavy combination vehicles that was safe and without risk to health.

Measures the company should have taken but failed to take with respect to the conduct of roadside repairs

7. The company should have instructed its employees, including Gregory Phillips, that long haul drivers were not to participate in the roadside servicing and/or repair of the company's long haul heavy combination vehicles.

8. Further, the company should have instructed its employees, including Gregory Phillips that long haul drivers were to remain clear of the vehicle and not to approach the vehicle whilst roadside servicing and/or repairs were being conducted.

9 Following the RTA inspection resulting in the need for repairs to the airbags and the requirement for Mr Phillips to take a seven-hour break before resuming driving, her Honour described the unfolding events in the following way:

25 In accordance with Intercoast's instructions, as contained in the Trucksafe Manual and the oral instruction given by Mr O'Brien, Mr Phillips contacted the corporate defendant's overnight supervisors, based in Melbourne, and informed them that the heavy combination vehicle had been "grounded" and required repairs. Mr Phillips also informed the overnight supervisors that he was "out of hours" and was required by the RTA Inspectors to take a seven hour break. The corporate defendant's officers contacted Autopool at Hexham and arranged for Autopool to send a motor mechanic to the RTA Inspection Facility to inspect and repair the subject heavy combination vehicle.

26 Prior to departing Autopool's workshop Michael Webb, a repair mechanic, loaded an Autopool ute with the tools and equipment he believed he would require for an "airbag repair", including his toolbox, some wheel chocks and some stands. The chocks which Mr Webb loaded were blocks of timber. He could not find any of the purpose-designed rubber chocks designed for the purpose of chocking truck wheels. Mr Webb also loaded a replacement airbag.

27 Mr Webb said the two bits of timber were "the best" he could find in the workshop. The police inspection described the chocks as follows: "two pieces of timber stacked upon one another - oil dirty condition" and "single timber slab - oil, dirty condition".

28 On arrival at the Inspection Facility, Mr Webb observed Mr Phillips in the B double cabin. He knocked on the cabin door. He did not know whether Mr Phillips "was awake or not". Mr Phillips alighted. On examination of the vehicle Mr Webb determined another type of airbag was required. Both he and Mr Phillips then travelled to Hexham and returned. As they chattered, Mr Webb said in evidence that Mr Phillips said he had only a few hours sleep in a couple of days. This comment does not seem to appear in the parts of the WorkCover interview tendered nor in the Police statement. However, the defendant does not seem to press this point.

10 An issue arose before her Honour as to whether or not Mr Webb had given an instruction to Mr Phillips to stay in the cabin of the prime mover and to keep his foot hovering over the brake while the repairs were being effected. This account was initially given by Mr Webb in evidence but had not been made in prior statements he had supplied. Her Honour noted that this use of the driver had first been raised in expert evidence filed by the parties as a possible and safe approach to the repair task but there were a number of aspects of Mr Webb's evidence that were inconsistent with this instruction being given on the day by Mr Webb to Mr Phillips. Her Honour ultimately determined that Mr Webb did not give this direction but her Honour was satisfied that Mr Phillips was asked to help and that he was directed to turn the engine on and slowly take each brake off. In dealing with this part of the evidence, Mr Webb confirmed that his employer did not wish to involve drivers at all in the repair process. Her Honour found that the system of work which Mr Webb had been instructed to follow was to perform the task as a "one-man job". In the event of an airbag fault, in order to check the inflation of the airbag, Mr Webb would get into the cab, turn the engine on and take off both brakes, then get out and check the airbag. Her Honour noted that, despite his employer's instructions, Mr Webb would otherwise ask a driver to assist.

11 Amongst the experts called to give evidence before her Honour was Dr Robert Casey, a mechanical engineer with expertise in automotive engineering. In particular, Dr Casey had expertise relating to the braking systems of heavy vehicles manufactured in America such as the prime mover involved in this accident and also had expertise in the pneumatics of a brake suspension system for trailers such as involved in this accident. Dr Casey gave evidence that the weight of the combined vehicle and the slope on which it was parked resulted in the capacity of the wooden chocks used by Mr Webb to hold the vehicle and stop it from rolling away as being marginal, at best. Dr Casey identified a number of alternative options available at the time of the accident that would have eliminated or reduced the risk of a roll away and, among those options, the following were identified:

It was possible to test the operation of the replacement airbag fitted by Mr Webb to the B- trailer of the heavy vehicle without releasing maxi-brakes on the heavy combination vehicle; and

it was possible to test the operation of the replacement airbag fitting by Mr Webb to the B-trailer of the heavy vehicle with the service brakes of the heavy combination vehicle engaged (that is, with the engine on, depressing the foot pedal in the prime mover so as to engage the service brakes).

Her Honour noted that Dr Casey was also of the view that, following new airbags being fitted, if it was necessary for the air system to be charged and the maxi-brakes released that task should have been performed on level ground with the support of purpose manufactured chocks.

12 After recording this evidence, her Honour noted that Mr Webb gave evidence that he had been taught that the airbag repair task was to be undertaken "with all the brakes off". Her Honour noted that this was clearly incorrect in light of the expert evidence that the trailer brake could have been left on without causing any inhibition to the airbags refilling. Her Honour noted that applying the separate trailer brake alone would have ensured the heavy vehicle was immobilised.

13 When her Honour came to deal with the safety of the system of work in relation to roadside repairs, her Honour stated as follows:

147 Particular 6 pleads the defendant failed to have in place a safe system of work for its employees during the conduct of roadside repair. Particular 7 pleads the corporate defendant should have instructed Mr Phillips that long haul drivers were not to participate in roadside servicing and/or the repair of the defendant's long haul heavy combination vehicle. Particular 8 pleads the defendant should have instructed Mr Phillips that he had to remain clear of his vehicle during repair.

148 In the application of the above principles, the evidence persuades beyond reasonable doubt Mr Webb was intending to leave the engine on and the brakes off during the time he was inspecting the inflation/deflation of the airbags. He satisfied himself in a 2-minute period that the chocks would hold the vehicle. After he directed the engine be turned on and the brakes off, he then got under the vehicle at various sites, the purpose of which was to check the airbags inflation and deflation. He had noted the brakes were still off yet continued to go about checking the unfurling of the airbags at the back of the vehicle. He then went to the front of the trailer and saw the front airbag on the trailer (which had been crunched) unfurled and the vehicle which was already pressed hard up upon the unsatisfactory chocks, he said, moved forward over the chocks and began to roll.

149 Mr Phillips had been in the cabin to assist in turning the engine on and the brakes off and then alighted from the cabin leaving the engine on and the brakes off.

150 Once I have dismissed that the second "instruction" of Mr Webb was not given, Mr Phillips was simply doing what was asked of him. The system of work followed by Mr Webb was unsafe and a major contributor to the incident.

151 However, Mr Phillips did leave the vehicle without the brakes on. The "second level" of safety required the brakes to be engaged. It matters not for the breach to be established whether Mr Phillips was drugged/fatigued. It was, I accept as Dr Hart said, "common sense" to apply the brakes on a B double vehicle before leaving the cabin. In the period between the act of inflating the bags and ensuring the chocks were holding the vehicle, there was time for both to consider applying the brakes before the checking process was undertaken.

152 Both went about the checking process. Mr Webb checked the function of the airbags and Mr Phillips went to check the workings of the docking mechanism (which is affected by the airbags). Both ignored the brakes were not engaged. The second level of safety was not in place.

153 I accept, therefore, there was a causal connection between Mr Phillips leaving the vehicle with the engine on and the brakes off and its movement. He created a "potential for danger".

154 The question becomes what obligation was held by InterCoast, his employer, for his action under the Act. Neither Mr Webb nor Mr Phillips would have been in danger had the brakes been applied. Mr Webb may have, had he performed the task he asked Mr Phillips to perform, continued to follow his unsafe system of work and I am satisfied he would have left the brakes off. Had this occurred the breach would have been solely a breach of the Act by Autopool for having in place an unsafe system of work.

155 Unfortunately, Mr Phillips did volunteer to assist. He performed the task as asked: leave the engine on and the brakes off. A prudent and experienced driver, as was Mr Phillips, would, however, have ensured the brakes were engaged again before alighting from the vehicle or there would/could have been a questioning of the procedure he was directed to follow by the repair mechanic by a prudent driver.

156 Mr O'Brien revealed that the only discussion in a single maximum 1½ hour training session he conducted with Mr Phillips was to instruct him in the performance of a repair job that the driver must notify the National Maintenance Manager. That instruction was followed by Mr Phillips. The further instruction Mr Phillips followed was to notify the overnight roster manager of his ordered rest period.

157 The failure of InterCoast to properly instruct Mr Phillips with respect to his conduct during the conduct of repairs by a third party was a failure that contributed to the risk. Mr O'Brien's oral instruction failed to address the issue. The Trucksafe Manual only provides contact numbers for management and states:

Any fault that the driver considers may compromise safety or be of serious nature should be reported to the National Maintenance Manager immediately. The driver is then to follow instructions given by the National Maintenance Manager to ensure that prompt repair is organised;

The National Maintenance Manager and/or the contract repairer must assess all faults reported;

Records must show what action has been taken in relation to each fault reported.

158 The training and system of work is silent on the driver's conduct during a repair.

159 In C I & D Manufacturing, the Full Court of the Industrial Court of NSW stated (at 181 - 182):

If responsible supervision were present at the time that would not have occurred since the system of work was obviously dangerous and amounted to an unsafe system with potentially dangerous risks.

160 Once Mr Phillips had become involved in the repair operation by sitting in the cabin with the engine on and all the brakes off, he acted entirely contrary to what would normally be expected of a prudent truck driver when he left the cabin with the engine on and the brakes off. The action of Mr Phillips in leaving the cabin was clearly inappropriate whether or not there was a request from Mr Webb to stay in the cabin in a position to apply the brakes.

161 Dr Hart said it is unacceptable practice to leave the engine running with the park brakes released whilst a person is underneath a truck without the service brake on.

162 In order to meet the requirements of s 8 of the Act, the corporate defendant's system of work for repairs of vehicles on the road needed to be "coherent and systematic" so that all drivers understood what was required of them during a roadside repair. In order to ensure such a system was safe as required by s 8, it was necessary for the defendants to lay down specific rules and procedures designed to guard against and prevent the type of failure which occurred in the present case: WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited (2003) 123 IR 121 at [78], [101(3)] per Walton J, with Wright J agreeing at [3], citing with approval Cullen v State Rail Authority (1989) 31 IR 207 (at 219). See also the Full Bench in State Transit Authority of NSW known as Sydney Ferries v Inspector Corrie Guillarte (2003) 123 IR 237.

...

165 The defendant corporation submits the prosecutor failed to lead evidence as to whether such instruction should have been given. The defendant corporation presses that an instruction to keep clear of the vehicle could have had the most dangerous of consequences had the driver complied and not interfered to apply the brakes.

166 In the circumstances where Mr Phillips' instinctive act was to run to the vehicle to engage the brakes which he successfully did and which, I have no doubt was for the public good, it seems illogical to find the defendant should have instructed its drivers to keep clear of a vehicle while roadside repair was being conducted. However, notwithstanding the implications given the set of facts before the Court I am persuaded there was an obligation on InterCoast to give that instruction. Mr Phillips should have been instructed to stay clear of the vehicle when repairs were being conducted. He should have been directly instructed to take no role in any repair of his vehicle when on road. Such an instruction would have minimised the risk to Mr Phillips' safety.

167 The corporate defendant should have instructed Mr Phillips that long haul drivers were to remain clear of the vehicle and not to approach the vehicle whilst roadside servicing and/or repairs were being conducted (Particular 7).

168 I find the corporate defendant failed to instruct Mr Phillips not to participate in the roadside repair and failed to instruct Mr Phillips to remain clear of the vehicle during the repair. These failures are demonstrative of the unsafe system provided by the corporate defendant for roadside repair.

GROUNDS OF APPEAL

14 The Notice of Appeal contained the following:

E Matters appealed against are:

The findings of her Honour Justice Kavanagh that InterCoast Refrigerated Transport Pty Ltd (InterCoast) and, by virtue of the operation of section 26(1) of the Occupational Health and Safety Act 2000 (NSW) (the Act), Anthony Francis Morfea (the Director) breached section 8(1) of the Act.

F The questions raised by the appeal are:

1. Whether it was open to her Honour to find beyond reasonable doubt that InterCoast failed to provide a system of work in relation to the performance of roadside service and/or repair of InterCoast's long haul heavy combination vehicles that was safe and without risks to health in failing to instruction its employees that:

(a) long haul drivers were not to participate in roadside servicing and/or repair; and

(b) long haul drivers were to remain clear of the vehicle and not to approach the vehicle whilst roadside servicing and/or repairs were being conducted (the Instructions); and

2. Whether it was open to her Honour to find that InterCoast's failure to issue the Instructions contributed to and bore a casual relationship with the risk of InterCoast's driver, Mr Phillips, being struck by a moving heavy combination vehicle whilst repairs were being performed on that vehicle at the RTA Inspection Facility on 14 November 2008.

G Grounds of the appeal are:

1. her Honour erred in finding that InterCoast failed to have in place a safe system of work for its employees during roadside repair that it failed to give the instructions to Mr Phillips (at [168] and 186]);

2. her Honour erred in finding that there was an obligation upon InterCoast to issue the Instructions to its employees, including Mr Phillips (at [166] - [168]); and

3. her Honour erred in finding that the failure of InterCoast to "properly instruct" its employees, including Mr Phillips (in not issuing the Instructions to Mr Phillips) with respect to his conduct during the conduct of repairs by a third party was a failure that contributed to the risk of Mr Phillips being struck by a moving heavy combination vehicle whilst repairs were being performed on that vehicle at the RTA Inspection Facility on 14 November 2008 (at [157] and [201]).

CONSIDERATION

15 The submissions on appeal fell into three main categories:

(a) the failure by the appellants to give an instruction to the driver not to participate in roadside servicing and/or repair was not causally related to the risk of Mr Phillips' health, safety or welfare because whatever action Mr Phillips was undertaking at the time could not be described as participating in either the servicing or repair of a motor vehicle;

(b) her Honour found that an instruction should have been given to the driver to remain clear of the vehicle and not approach the vehicle whilst repairs were being conducted but the phrase "remain clear of the vehicle" in the circumstances of the events of this accident was "so vague as to be meaningless". Her Honour was in error in finding that such a "nebulous" instruction should have been given without requiring it to be described and defined with much greater clarity;

(c) in dealing with the circumstances of Mr Phillips' fatal injury her Honour overlooked the essential fact that the accident occurred because of the inadequacy of the wheel chocks used by the repairer. Mr Phillips was standing beside the truck when it began to move and his act of running after the moving vehicle to prevent it travelling on to the highway was instinctive and could not be causally linked with the suggested instruction to stay clear of the vehicle. Mr Phillips could have been standing 30 metres from the vehicle yet the same accident would have resulted.

16 There are two matters of general importance that might be dealt with before considering the three particular issues raised by the appellants. Firstly, the respondent complains that some submissions on appeal suffer from incurable defects and should therefore be rejected. The submission that the instruction to remain clear of the vehicle whilst under repair was "unclear and nebulous" was a submission never put below nor was it the subject of a request for further and better particulars: it was not until the appeal submissions were filed that an argument was found to be raised that such an instruction was unintelligible. Further, it was submitted that the appellants' contention that the driver's actions could not constitute participating in the servicing or repairing of the vehicle was an argument not put before the trial Judge. The appellants did not contest the accuracy of these matters raised by the respondent but asserted their entitlement to put these arguments on appeal.

17 The point raised by the respondent to the appeal is well taken and is supported by longstanding authority. In Banque Commerciale S.A., en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 284, Mason CJ and Gaudron J stated:

It is necessary to note the decision in Water Board v. Moustakas. In that case an appellant was precluded from making a case that had not been made at trial, although the elements of that case had been pleaded and particularized. The decision in that case was rested on the rule that, unless all facts have been determined beyond controversy or the question is one of construction or law and it is expedient and in the interests of justice to entertain the point, a party may not take a point for the first time on appeal. See, generally, Suttor v. Gundowda Pty. Ltd;University of Wollongong v. Metwally [No. 2]; Coulton v. O'Brien v. Komesaroff. Some aspects of that rule appear to derive from public policy considerations directed to ensuring the finality of litigation. On the other hand, some aspects of the rule may have their genesis in estoppel by election in the conduct of litigation, although, if so, the relevant consideration is not that the other party is put in a worse position but that he or she may have been so placed. See, for example, Moustakas, where the refusal to allow the appellant to raise a new case was rested on "the possibility that the [other party] may, if it had been raised below, have wished to call evidence in response to it". So far as the rule may derive from public policy, the relevant consideration is that the case sought to be made on appeal is a new or different case from that which emerged at the trial. See Browne v. Dunn, cited with approval in Rowe v. Australian United Steam Navigation Co. Ltd.; Moustakas.

18 In a further examination of the policy behind the rule referred to in Bank Commerciale, McHugh J in Tyson v Brisbane Market Freight Brokers Pty Ltd [1994] 68 ALJR 304 at 310-311, stated:

Here the defendant wishes to raise a case inconsistent with the issue which he tendered for determination at the trial. Except in the case where the parties have mutually abandoned the pleadings at the trial, the public interest in the finality of litigation requires that, unless some exceptional circumstance exists, a party must be refused leave to make a case on appeal which is inconsistent with his or her pleadings. As the majority of this court in Coulton v Holcombe pointed out, no court finds any satisfaction in refusing to allow a party to raise a point which might enable it to succeed in the litigation. But, as the court went on to say, the principles which govern the raising of new points ``have stood the test of time because they have been found to serve effectively the public interest in the fairness and expedition of the administration of justice''. We live in an era where the cost of litigation is beyond the means of ordinary citizens and where awards of party and party - and even indemnity - costs cannot fully compensate a party for the cost and worry of litigation. Because that is so, it is as important as ever that the established principles concerning the raising of new points be strictly applied and that the parties be kept to the issues which, by their pleadings, they raised for determination at the trial.

The Full Court gave consideration to the application of this principle as set out in Coulton v Holcombe (1986) 162 CLR in WorkCover Authority (NSW) (Inspector Maddaford) v Coleman (2004) 138 IR 21 but found the facts were such that the application of the principle was unnecessary to determine in that appeal as the relevant point been taken below. Although the point is well taken in the present appeal it is unnecessary to treat the appeal as being thereby determined. The Court has had the benefit of full argument on the matters raised by the appellants and is content to determine the appeal on the merits of those arguments.

19 The second issue of general significance is the fact that the appellants argued the entirety of this appeal by focusing upon the actual accident involving the driver, Mr Phillips. At first instance, Kavanagh J, in dealing with other charges, drew attention to the fact that an offence under the Act directs attention to the risk to the safety of persons, including employees. The correct approach to proceedings under the Act were first spelt out by the previous Industrial Court in Haynes v CI & D Manufacturing Pty Ltd (1995) 60 IR 149. At p 157 et seq the Full Court stated:

Sections 15 and 16 of OHS Act are both concerned with failures to ensure the health and safety of persons at workplaces in terms inter alia of "risks" thereto; thus, the sections, even absent any actual accident causing death or bodily injury, nevertheless comprehend the commission of an offence where the relevant "detriment to safety" (as spoken of in Dawson and McMartin) is but a risk, or, in other words, where the circumstances are such that an employer's act or omission has created a situation of potential danger to the health and safety of persons at his workplace.

...

The stated purpose of the OHS Act being "to provide effectively for the safety, health and welfare of all persons in all workplaces" in which "enormous reforms in worker safety, health and welfare" will be achieved in "the protection of workers in their employment from all risks resulting from factors adverse to health" by placing "responsibility on employers to ensure that they operate in such a way as not to endanger their employees" may only be seen in the manner stated by us. The general duties created by the OHS Act, such as in ss 15 and 16, are clearly directed, we think, at obviating "risks" to safety at the workplace; it would therefore be wrong in considering whether an alleged breach of those general duties had been made out in any particular case to reason from the actual occurrence of an accident, even though causing death or injury, as the necessary detriment to safety and as to which a causal connection was to be shown. The accident itself may well, and probably does, manifest the existence of a detriment to safety and will, no doubt, be some measure of the degree of severity of the detriment: but, it seems to us, it is to the essential ingredients of the offence charged which one must attend by assessing the objective facts causing the detriment to safety and the causal connection therewith of the employer.

...

Sections 15 and 16 of OHS Act are both concerned with failures to ensure the health and safety of persons at workplace in terms inter alia of "risks" thereto; thus, the sections, even absent the commission of an offence where the relevant "detriment to safety" (as spoken of in Dawson and McMartin) is but a risk, or, in other words, where the circumstances are such that an employer's act or omission has created a situation of potential danger to the health and safety of persons at his workplace. ...

20 Importantly, the approach set out in C I & D (having regard to its fate in the Court of Appeal on unrelated matters) was specifically adopted by the Full Bench in Drake Personnel Ltd t/as Drake International v WorkCover Authority of NSW (Inspector Ch'ng) [1999] 90 IR 432 at 452. This statement of principle has since been followed and applied in numerous cases arising under the Act either directly or in terms that are largely consistent with that analysis of the 1983 statutory provisions in Drake. Despite this longstanding approach (which was not called into question at first instance or on appeal), the case for the appellants in each of its three limbs continually returned to the precise circumstances of the accident rather than addressing the risk raised in the charges as particularised. Notwithstanding that the application of these two long recognised principles goes to the very heart of the appeal, an analysis of the matters raised otherwise demonstrates that the grounds of appeal lack merit.

21 The first issue raised in submissions on appeal argued that Kavanagh J was in error in finding, in the circumstances of this accident, that a failure by the appellants to give an instruction not to participate in roadside servicing and/or repair could not be causally related to the risk of Mr Phillips' health, safety or welfare. It was argued that the actions of Mr Phillips could not be described as participating in either the servicing or repair of a motor vehicle: all that he did was at the instruction of the mechanic. He started the prime mover's motor and released the brakes of the prime mover. The mechanic carried out the repairs alone and the actions of Mr Phillips were no more than what might occur when a motorist was being assisted by a roadside service provider, such as the NRMA.

22 The appellants' submission, in this simple form, is not supported by the evidence. The mechanic accepted that he usually performed this type of job on his own without assistance from anybody and his employer's practice was that he should not enlist the support or help of drivers. He accepted that the drivers were to keep out of the way completely. Despite these matters the mechanic did ask the driver, Mr Phillips, to assist him. The mechanic confirmed that, if a driver had told him he was tired and did not wish to assist, the mechanic would then have performed the entirety of the work himself as he normally did.

23 Kavanagh J found that the driver, Mr Phillips, volunteered to assist the mechanic. He performed the tasks that he was asked to, namely, to leave the engine on and the brakes off. Importantly, her Honour also found that Mr Phillips was involved in the "checking process" following the repairs. On appeal, senior counsel for the appellants accepted that the work to be performed by the mechanic was a "one-man job". The evidence was "abundantly clear" that the mechanic would have performed this work on his own and usually did so. The mechanic and driver drove into Hexham and if the driver had stayed in town or rested elsewhere, it was not contested that the mechanic would have returned to the truck and performed all the work on his own. It was also accepted that, if the mechanic was on his own with the truck, he "would have done everything the same" - "all the driver did was do things that the mechanic would have otherwise done himself". In light of this evidence the Court is unable to accept the submission that when Mr Phillips, the driver, assisted the mechanic by doing what he was told by way of sitting in the cabin of the truck turning on the engine, releasing the brakes and assisting in checking the work, the driver was not participating in roadside servicing and/or repairs. These were the very same acts that the mechanic would have undertaken if he was performing the work alone as was the usual course and was the course that his employer had told him to adopt.

24 The particulars of the charge in this respect were that there was a failure to instruct employees, including Mr Phillips, that long haul drivers were "not to participate in the roadside servicing and/or repair of the respondent's long haul heavy combination vehicles". The appellants' submissions argue that the actual repair work was solely carried out by Mr Webb, the mechanic, but the particulars do not refer to a prohibition on performing actual repair work or servicing work but used the words "participate in". The notion encapsulated by the word "participate" is to share or take part in with others (see The Macquarie Dictionary, 3rd ed). This part of the appellants' submission cannot be accepted. It might also be noted that it is quite arguable that the Notice of Appeal filed by the appellants did not raise this point.

25 Under this same heading the appellants appear then to mount what might be described as a subsidiary argument, beginning with the proposition that her Honour was in error to the extent that, while Mr Phillips was sitting in the cabin of the truck as repairs were being carried out, he was not at risk of being struck by the vehicle. The respondent accepts the correctness of that position but points out that, properly understood, her Honour drew attention to the risk of being struck while leaving the cabin of the vehicle with the engine on and the brakes off. The issue raised about sitting in the cabin of the truck, in any event, appears to have no point in the appellants' case in circumstances where the prosecutor particularised the further omission or failure, namely, the failure of the defendant to instruct its employees, including Mr Phillips, that long haul drivers are to remain clear of the vehicle and were not to approach the vehicle while roadside servicing and/or repairs were being conducted. To the extent that Mr Phillips was leaving the cabin of the vehicle while these repairs were being carried out by the mechanic, he clearly was not standing clear from the truck in any relevant sense of those words. Further, her Honour's finding that in leaving the vehicle with the brakes off, Mr Phillips thereby created potential for danger that was casually connected was irrelevant to the prosecutor's case as particularised. The strength or cogency of that case is not diminished by these comments of her Honour and they were unconnected to her ultimate findings as to the particulars of the unsafe system of work.

26 The second broad heading on appeal concerned the instruction to remain clear of the vehicle and not approach the vehicle while repairs were being conducted. It was submitted that the phrase "remain clear of the vehicle" in the circumstances that arose at the time of this incident was "so vague as to be meaningless". It was suggested that there were many potential definitions of that phrase including the staying away of a short distance, below one metre, or, up to 30 metres. The error was described as a failure by her Honour to require that the instruction "be defined with much greater clarity". The instruction had to be intelligible and capable of compliance. It was further submitted that Mr Phillips, having left the cabin of the truck then walking alongside the vehicle, was not then at risk of being struck by the vehicle while it was being repaired unless he decided to stand in front of the vehicle, behind the vehicle or went under the vehicle or exposed his feet to be run over by the vehicle. It was submitted that there were no extrusions from the vehicle that may have struck him unaware if it had moved.

27 The very terms of this submission demonstrate the error drawn to attention by the Full Court in Drake : the submission focuses upon the accident and not upon the alleged risk.

 

28 It was accepted by the appellants that Mr Phillips was standing beside the truck when it began to move. Although there were not precise measurements of the prime mover and its two trailers provided in the factual report prepared by the Inspector, the photographs in evidence in the context of surrounding objects, including motor vehicles, indicate that the total length of the truck and trailers was considerable and the height of the load towered over a person standing next to it. The truck and its load was said to weigh more than 60 tonnes and when it began to move, there could be no way of knowing in what direction it would go. In submissions for the appellants, it was suggested that the truck might have proceeded straight ahead and possibly into bush or may have missed that area and travelled on to the highway. In acknowledging that the truck could vary in its direction, it could not then be excluded from contemplation that the truck may therefore strike somebody who was standing next to it or with their back to the truck and/or while being unaware of any movement. That is the type of risk that was encompassed by the direction particularised by the prosecutor. It is not inconceivable that a truck that begins to move may come into contact with some other object, causing its load to move - in those circumstances, a person standing beside a truck could be at risk. The appellants' total focus on the very events that occurred on this day, including where the truck came to rest, has the result of its submissions failing to come to grips with the risk particularised by the prosecutor.

29 This instruction, like any workplace instruction, requires, at minimum, the application of commonsense. A direction by the employer to "stand clear" from an object necessarily carries with it an understanding that the person must put themselves beyond danger. In each case, this may require an assessment to be made but the direction will be no less valid or of utility because of the need of some commonsense assessment. In relation to the respondent's activities, it must also be borne in mind that when repairs were required, the appellants' system was to report immediately to the national maintenance manager and to follow instructions given by that manager to ensure that prompt repair was organised. Where that requirement to contact the national maintenance manager operates alongside a direction to stand clear of the vehicle during servicing or repairs, it is entirely open under that system for the maintenance manager to give a direction to the driver as to where he should go in order to be safe in the circumstances then extant.

30 In dealing with this submission, the respondent prosecutor cited the decision of Dawson J in Kondis v State Transport Authority (formerly Victorian Railways Board) (1984) 154 CLR 672, at 695:

The breach was the failure of the foreman employed by the respondent to direct the appellant to stay clear of the jib of the crane whilst it was being extended.

The respondent relies on this observation as support for the proposition that it is not necessary to specify a particular distance in order for a "stand clear" direction to be intelligible or capable of being complied with. The Court accepts that proposition in this case. On this approach to the particularised directions, the appellants' related lack of casual connection submission also fails.

31 The submissions regarding the inadequacy of the instruction to "stand clear" also merged into the third submission concerning the circumstances of Mr Phillips' fatal injury. Again, this submission focuses upon the accident rather than the risk particularised. The submission firstly proposes that there was almost nowhere for Mr Phillips to wait within the boundaries of the inspection station in order to be able to stand clear of the truck. This submission, concentrating as it does on the actual accident, ignores the fact that Mr Phillips was instructed to take a seven-hour break because he had been driving for too long a period and had been "grounded". Such a requirement had to contemplate that he would take his break at some place remote from the roadside inspection station. It is also significant that the appellants did not raise any s 28 defence and therefore did not argue that it was not reasonably practicable for the respondent to comply with the provision or that the commission of the offence was due to a cause over which the appellants had no control or against the happening of which it was impracticable for the appellants to make provision.

32 In this context, it was also submitted by the appellants that the fatal injuries suffered by Mr Phillips were not as a consequence of a risk created to his health and safety by failing to instruct him to "keep clear" but were a direct result of Mr Phillips' "instinctive and selfless act" in seeking to stop the vehicle that had begun to move. The vehicle had begun to move, it was submitted,because of the totally inadequate system of work adopted by the service provider who employed Mr Webb, the mechanic, and the inadequacy of the wheel chocks he chose for this task. Again, the submission focuses totally on the accident and not the risk particularised.

33 The difficulty that arises for this submission, apart from those already identified, is that it assumes that, should the appellants have given a direction to "stand clear" and to not involve himself in the servicing or repair of the truck, Mr Phillips would, nevertheless, have refused to stand clear and would have remained in close proximity to the truck and would still have reacted instinctively in trying to stop the truck and would do so in breach of specific instructions to the contrary. It is simply unknown what Mr Phillips' reaction would have been if he remained in the area in similar circumstances. It cannot be assumed that, if the instruction as particularised had been given, Mr Phillips would stay in close proximity to the truck - the situation may never have arisen for him to react instinctively, or otherwise. It is equally unknown whether, given an instruction to keep clear and to not involve himself in the repair of the vehicle, Mr Phillips would disobey that direction: it cannot be assumed that he would do so simply because he took an instinctive action in circumstances where he was devoid of any guidance or direction by his employer as to what he should do and was, thereby, situated next to the vehicle. It might also be observed that if the appellants had given the direction in terms particularised by the prosecutor and had taken steps to enforce compliance with that instruction, any disobedience of that instruction would not automatically lead to a breach of the Act and a failure to provide a safe system of work. The major object of the Act is to ensure that safe systems of work are laid down and enforced. The instructions as particularised by the prosecutor satisfy that objective.

34 Having regard to the matters considered above, the appeal is dismissed and the appellants shall pay the costs of the respondent, as agreed, or, alternatively, as assessed. The Court makes orders accordingly.

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Decision last updated: 22 February 2013