Paradise Outdoor Building Company Pty Ltd v Steward
[2022] QCA 118
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- Unreported Judgment
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- Paradise Outdoor Building Company Pty Ltd v Steward[2022] QCA 118
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Paradise Outdoor Building Company Pty Ltd v Steward[2022] QCA 118
Paradise Outdoor Building Company Pty Ltd v Steward[2022] QCA 118
SUPREME COURT OF QUEENSLAND
CITATION: | Paradise Outdoor Building Company Pty Ltd v Steward [2022] QCA 118 |
PARTIES: | PARADISE OUTDOOR BUILDING COMPANY PTY LTD ACN 106 128 670 v SHARON MARIA STEWARD (respondent) |
FILE NO/S: | CA No 301 of 2020 DC No 31 of 2019 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Leave s 118 DCA (Criminal) |
ORIGINATING COURT: | District Court of Queensland at Brisbane – [2020] QDC 346 (Dearden DCJ) |
DELIVERED ON: | 5 July 2022 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 24 August 2021 |
JUDGES: | Sofronoff P and Fraser JA and North J |
ORDER: | Application for leave to appeal refused. |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – OTHER MATTERS – where the applicant was found guilty by a magistrate of an offence under s 40C of the Electrical Safety Act 2002 (Qld) – where an appeal by the applicant to a judge of the District Court under s 222 of the Justices Act 1886 (Qld) was dismissed – where the applicant conducted a business which included changing the advertising skins on advertising signs – where an employee received an electric shock and suffered serious injury during the changing of the skin – where Ms Olive, an electrical engineer employed by the parent company of Ergon Energy and Energex, gave evidence of the cost of raising the relevant electric lines to ensure they would no longer be close to the advertising sign – where after the magistrate described Ms Olive’s evidence, the magistrate made the unequivocal finding “that there were readily available and inexpensive ways of eliminating the risk by simply requesting Ergon to raise the power lines” – where the findings of the magistrate, each of which was justified by the evidence, compel the conclusion that there was nothing impractical about the applicant fulfilling its electrical safety duty in the way alleged by the respondent – where the relevant question is whether the applicant’s failure to ensure that its business was conducted in such a way that the risk to any person of death or serious injury or illness caused directly by or originating from electricity was eliminated so far as was reasonably practicable exposed an individual to a risk of death or serious injury or illness – where the question is not whether that failure caused the serious injuries suffered by Mr Nolan when he received an electric shock, but whether there was a causal relationship between the failure to ensure that the applicant’s business was conducted in the described way and the risk of death or serious injury to which the applicant was exposed – whether the District Court judge erred in dismissing the appeal Electrical Safety Act 2002 (Qld), s 10, s 28, s 40C Electrical Safety Regulation 2013 (Qld), s 68 Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37, cited Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27, cited |
COUNSEL: | A J Smith for the applicant L K Crowley QC, with S E Harburg, for the respondent |
SOLICITORS: | Carter Newell Lawyers for the applicant Office of the Work Health and Safety Prosecutor for the respondent |
- [1]SOFRONOFF P: I agree with Fraser JA's reasons and with his proposed orders.
- [2]FRASER JA: The applicant conducted a business which included changing the advertising skins on advertising signs. On 12 July 2016 two employees of the applicant, Mr Nolan and Mr Traynor, were required to change the advertising skin on an advertising sign adjacent to the Bruce Highway near Mackay. Energised 33kv power lines ran along the verge parallel to the Bruce Highway. During the changing of the skin, Nolan was standing on a ladder at the top of the advertising sign when the conductive aluminium sail track he was holding became energised. Mr Nolan received an electric shock and suffered serious injury.
- [3]The applicant was charged with a category 2 offence under s 40C of the Electrical Safety Act 2002. Section 40C provides that a person commits a category 2 offence if:
“(a)the person has an electrical safety duty; and
- (b)the person fails to comply with that duty; and
- (c)the failure exposes an individual to a risk of death or serious injury or illness.”
- [4]After a hearing in the Mackay Magistrates Court which occupied two days, the applicant was convicted of that offence. An appeal by the applicant to a judge of the District Court under s 222 of the Justices Act 1886 was dismissed. The applicant now applies for leave to appeal from the judgment given in the District Court pursuant to s 118 of the District Court of Queensland Act 1969. Leave is ordinarily granted under that provision only where an appeal is necessary to correct a substantial injustice to the applicant and there is a substantial argument that there is an error requiring correction.[1] The respondent opposes leave to appeal upon the basis that the grounds of the proposed appeal have no substance.
- [5]The four grounds of the proposed appeal concern the questions whether the respondent proved beyond reasonable doubt the applicant breached its electrical safety duty (s 40C(b)) and that the alleged breach exposed Mr Nolan or his co-worker to a risk of death or serious injury (s 40C(c)).
- [6]It is necessary first to identify the applicant’s electrical safety duty (s 40C(a)). Section 30 relevantly provides that “A person conducting a business…must ensure the person’s business…is conducted in a way that is electrically safe”. The expression “electrically safe” is defined in s 10(2), so far as is relevant here, as meaning “(a) for the way a business…is conducted, that all persons are free from electrical risk from the conduct of the business…”. The expression “electrical risk” is defined in s 10(1)(a) to mean, relevantly, “in relation to a person, the risk to the person of death, shock or injury caused directly by electricity or originating from electricity”. Section 10(4) provides that in s 10, “free from electrical risk, for a person or property, means that –
“(a) electrical risk to the person or property has been eliminated, so far as is reasonably practicable; or
- (b)if it is not reasonably practicable to eliminate electrical risk to the person or property, the risk has been minimised so far as is reasonably practicable.”
- [7]Adopting the conventional approach of reading definitions into the operable provision of an Act, section 30C imposed upon the applicant an electrical safety duty to ensure that the business was conducted in such a way that the risk to any person of death, shock or injury caused directly by or originating from electricity was eliminated so far as was reasonably practicable or, if it was not reasonably practicable to eliminate that risk, to ensure the risk was minimised so far as was reasonably practicable.
- [8]Section 28 of the Act describes what is meant by “reasonably practicable”. The expression means “that which is, or was, at a particular time, reasonably able to be done in relation to ensuring electrical safety, taking into account and weighing up all relevant matters including –
“(a) the likelihood of the hazard or the risk concerned happening; and
- (b)the degree of harm that might result from the hazard or the risk; and
- (c)what the person concerned knows, or ought reasonably to know, about –
- (i)the hazard or the risk; and
- (ii)ways of eliminating or minimising the risk; and
- (d)the availability and suitability of ways to eliminate or minimise the risk; and
- (e)after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.”
- [9]The particulars of the charge allege that the billboard in question was “located in close proximity to the overhead electric lines”. That is uncontroversial. The particulars also allege that “performance of work in the vicinity of an overhead high voltage electric lines…and…using conductive objects, namely aluminium sail tracks, posed an electrical risk to persons of death or serious injury from exposure to 33kVolts of alternating electric current”. That was admitted: in addition to admissions of the facts set out in [1] of these reasons, the evidence in the prosecution case included the respondent’s admission that, “The work of changing the skin on advertising sign 1560 involved a risk of serious injury or death. That risk arose from the electrical current running through the 33kv power lines”.
- [10]In relation to the elements of breach of the electrical safety duty and causation, the particulars of the charge include:
“8. The defendant failed in its duty to ensure that its business or undertaking was conducted in a way that was electrically safe, including failing in its duty to ensure persons performing work near to exposed parts, including Nolan, was electrically safe, by exposing him to a source of electrical risk, being the risk of death, shock or injury caused directly from electricity or originating from electricity.
- The defendant could have ensured that all persons, including Nolan, were electrically safe and free from electrical risk by eliminating the electrical risk so far as is reasonably practicable by:
- (a)ensuring that no person including…Nolan…and any conductive objects handled by those persons, come within an unsafe distance of a high voltage overhead electrical line (otherwise known as the “exclusion zone”) in compliance with section 68 and Schedule 2 Part 2 of the Electrical Safety Regulation 2013 and Chapter 3 of the Electrical Safety Code of Practice 2010 – Working Near Overhead and Underground Electrical Lines;
…
- (d)arranging for the electrical entity to move the overhead electric lines to ensure maintenance of the relevant exclusion zones for persons working at and on the billboard”.
- [11]Section 68(1) of the Electrical Safety Regulation 2013 relevantly provides that a person conducting a business at a workplace must ensure, so far as is reasonably practicable, that no person, plant or thing at the workplace comes within an unsafe distance of an overhead electric line. In a case in which it is not reasonably practicable to ensure the safe distance, under s 68(2) the person conducting the business must ensure that a risk assessment is conducted for the proposed work and control measures implemented that are consistent with the risk assessment and, if an electricity entity is responsible for the electric line, any requirements of the entity. The effect in this case of s 69(1) and schedule 2 of the Electrical Safety Regulation 2013 in relation to the applicant’s employees was that the “unsafe distance of an overhead electric line” was three metres. The space within that distance from the line was the “exclusion zone for the person for the line”.
- [12]The applicant did not seek to challenge findings by the magistrate of satisfaction to the required standard of proof that on 12th July, 2016 the “energised 33kvolt power line was in close proximity to an advertising sign owned by the defendant”, the applicant “required its workers (included Nolan) to perform work on the advertising sign, the top corner of which was 2.6 metres from an overhead power line”, the workers “were required to feed a 3 metre long conductive aluminium sail [track] vertically along a sleeve on the…sign”, the exclusion zone in the present case was a distance of 3 metres from the overhead 33k vault electric power line, the respondent “was aware of the hazard since 5th March, 2008 [insofar] as it was aware that the subject advertising sign was close to the exclusion zone” and “despite the defendant being aware of the closeness of the advertising sign to the power line, the defendant made no inquiries with Ergon Energy[2] in relation to ways to accurately measure the distance from the sign to the power line or ways to eliminate the risk of exposure to electricity from the overhead power lines.”
- [13]As to the applicant’s knowledge of the hazard, the magistrate referred to an email dated 20th March 2017 the applicant sent to the Principal Inspector Investigations Workplace Health and Safety Queensland, Mackay in which the author stated that “Power lines were identified as a hazard on 5/3/2008 during a routine risk assessment”.
- [14]The email also stated that processes were put in place once the overhead power lines were identified as a hazard, “workers were instructed to feed the sail track from the bottom of the sign”. The email continued, “Hazard of overhead power lines and the required control measures were noted on the documentation for that site”. The only identified “control measure” was instructing workers to feed the sail track from the bottom of the sign. The magistrate did not accept that the applicant in fact did give such an instruction. The magistrate referred to evidence given about the nature and type of training provided by the applicant. Mr Nolan gave evidence he had never received training in relation to exclusion zones or the need not to work within 3 metres of power lines. Mr Ward gave evidence that he told Mr Nolan to feed the sail track from the bottom, but the magistrate found that Mr Ward’s evidence could not be relied upon unless it was supported by other corroborated evidence or was of a straightforward and uncontroversial nature. The magistrate held accordingly that the applicant “provided only limited training to [its] workers in relation to exclusion zones and the need not to be within 3 metres of power lines.”
- [15]Accordingly, the application in this court proceeds upon the footing that the applicant, knowing that the high voltage overhead power lines amounted to a hazard for which control measures were required, did not take any significant step to ameliorate that hazard but required its workers, including Nolan, who had only limited training about the need not to be within 3 metres of power lines, to feed a 3 metre long conductive aluminium sail track vertically along a sleeve on a billboard, the top corner of which was .4 of a metre within the exclusion zone described in s 68 of the Electrical Safety Regulation 2013.
- [16]The purpose of the “exclusion zone” as a “safety envelope” is explained in chapter 3 of the Electrical Safety Code of Practice 2010 – Working Near Overhead and Underground Electrical Lines (“the Code”):
“An exclusion zone is a safety envelope around an overhead electric line. No part of a worker, operating plant or vehicle should enter an exclusion zone while the overhead electric line is energised (live).
Exclusion zones keep people, operating plant and vehicles a safe distance from energised overhead lines.
You must keep yourself and anything associated with the work activity out of the exclusion zone (i.e. a safe distance) unless it is not reasonably practicable to do so; and the person conducting a business or undertaking complies with the requirements of section 68(2) of the ES Regulation in relation to:
- conducting a risk assessment;
- implementing control measures;
- adhering to any requirements of an electricity entity responsible for the line.”
- [17]A broad description of “the risk management process” in chapter 2 refers to the obligation upon a person conducting a business to “manage risks by identifying reasonably foreseeable hazards that could give rise to a risk, eliminating those risks so far as is reasonably practicable, or if that is not possible, minimising those risks by implementing control measures”. The applicant had taken the first step of identifying the hazard many years before the incident. The next step in the risk management process was to “Assess the risks”. Under that heading, the risk management process includes: “Risk assessment involves considering what could happen if someone is exposed to a hazard (consequence) and the likelihood of it happening… For work near overhead or underground electric lines, this determines the risk of… injury to a worker…damage to property, plant or equipment…coming within an unsafe distance for an electric line… The risk assessment should consider…the location, height, arrangement and visibility of overhead electric lines and supporting structures like poles, towers and stay wires…”.
- [18]A hierarchy of control measures appear under the heading “Control the risks”. The person conducting the business is required to “work through this hierarchy to choose the control that most effectively eliminates or minimises the risk in the circumstances, so far as is reasonably practicable”. The following appears under the subsequent heading “Elimination”:
“The most effective control measure is to remove the hazard or hazardous work practice…
This is the most effective control measure and must always be considered before anything else.
The best way of eliminating these hazards is to prevent people, plant equipment and materials from coming close enough to energised overhead electric lines for direct contact or flash over to occur.
This may include:
- de-energising the electric line for the duration of the work
- isolating and earthing the line (or equivalent for low voltage or rail) so it is not live for the duration of the work
- re-routing the electric line away from the work area, or
- replacing existing overhead electric lines with underground electric cables.
Note: de-energising or moving electric lines should be arranged with the electricity entity as soon as possible because, depending on the circumstances, it may take some time to arrange.”
(Other control measures identified under the heading “Control the risks” include “Administrative controls”. Amongst these are, “managing and supervising the work to ensure … exclusion zone distances are strictly maintained…”)
- [19]By s 45 of the Electrical Safety Act 2002, that Code is admissible in proceedings for an offence against the Act as evidence of whether or not a duty under the Act has been complied with (s 45(2)), the court may have regard to the Code as evidence of what is known about a hazard or risk, risk assessment or risk control to which the Code relates, and the court may rely on the Code in deciding what is reasonably practicable in the circumstances to which the Code relates (s 45(3)).
- [20]Ms Olive, an electrical engineer employed by the parent company of Ergon Energy and Energex, gave evidence that the cost of raising the relevant electric lines to ensure they would no longer be close to the advertising sign (as was done after the accident, at the applicant’s expense) was between $4,000.00 and $4,500.00. In answer to a question whether a person concerned about power lines being close to a structure or where works were being conducted could contact Ergon, she answered “Absolutely. We encourage that.” When asked whether Ergon was open to turning off the power if that was an issue, she answered, “Absolutely. If…it was a dire situation and could not be quickly rectified and we felt that it was necessary, we would turn the power off for someone’s safety.” She gave evidence that Ergon was prepared to make measurements from the lines to structures or work was going to be conducted upon the enquiry of a person when the structure was near the lines: “For something like a billboard it is a fairly straightforward exercise…”.
- [21]The following exchange then occurred in Ms Olive’s examination in chief:[3]
- (1)“If someone raises with Ergon or Energy Queensland that it appears that some conductors are close to a billboard sign where people are going to work and close to the exclusion zone, is that something that Ergon then makes measurements about and amendments about? We would respond to that straightaway. When you say we’d make amendments what do you mean?”
- (2)“Would you go and – how would you respond to that? If an inquiry was made about the closeness of a conductor to where people were working or to a sign, as in this case, what would Ergon’s response be? Well, we would be out there straight away to ascertain if not there was a risk and we would make some immediate measures to control the risk of that particular circumstance. It could be turning the light off. It would be putting insulated tiger tails over the top of the conductor. It could be putting marker flags on the conductor as a visual notice until we could put other measures in place, but there are immediate measures and there’s a list of them that are available in a guideline to our staff of the steps they can take instantly.”
- (3)“And then there would be work done to ascertain as who we felt had caused that breach. If we were quite confident that that breach was caused by the customer, we would work with the customer to rectify the situation, potentially at their cost, or convince them to move their structure or dismantle it or whatever was the cheapest and most efficient response. If we were convinced that it was our responsibility that that breach had occurred, then we would often – more often than not we would just rectify the defect and bear the cost ourselves.”
- [22]The magistrate recorded that the prosecution had relied “primarily” on paragraph 9(d) of the particulars of the charge. The magistrate’s substantive reasoning is introduced by the statement that the Prosecution bore the onus of proving each and every element of the alleged offence and the standard of proof was beyond reasonable doubt.
- [23]The reasons given by the magistrate include the following:
“I also reject the submission that it was not reasonably practicable for the defendant to arrange for Ergon to move the power lines. Having regard to the evidence of Chanelle Olive it would reasonably be expected that Ergon Energy would have almost certainly have provided prompt advice to the defendant upon request.
…I appreciate that the evidence does [not[4]] indicate that the defendant was aware that the relevant advertising sign was definitely within the 3 metre exclusion zone. However the evidence is clear that the defendant was aware that as from 5th March, 2008 the overhead electric power lines were identified as a hazard.
…In my view, the only way for the defendant to eliminate the risk of working [within[5]] the exclusion zone would have been to either move the sign or arrange for Ergon to move or raise the electric power line.
The defendant did neither…
I consider that in the circumstances, upon the defendant becoming aware of the hazard, it ought to reasonably have contacted Ergon Energy. In my view the defendant was obliged under the circumstances to at least make enquiries with Ergon Energy to ascertain what they could do to accurately measure the distances and to eliminate the risk.
Whilst the defendant cannot be expected to have the benefit of hindsight, on the evidence there would be a reasonable expectation that a positive outcome would have been achieved if the defendant had contacted Ergon when it became aware of the hazard in 2008.”
- [24]After describing the evidence given by Ms Olive about Ergon moving the electric lines after the incident , the magistrate continued:
“It is clear that there were ready available and inexpensive way of eliminating the risk by simply requesting Ergon to raise the power lines. On the evidence of Chanelle Olive, it is reasonably expected that if a request had been made, then a prompt response would have been forthcoming from Ergon.
Upon consideration of the provisions of section 28 of the Electrical Safety Act in relation to what is reasonably practicable in ensuring electrical safety, I am satisfied to the required standard of the following:
- (a)Having regard to the nature of the work and the limited training provided to workers, the likelihood of the risk of electric shock to a worker was high.
- (b)The degree of harm that might result from electric shock to a worker from the electric power line was death or severe injury.
- (c)That the defendant knew since 5th March, 2008 that the advertising sign was close to the exclusion zone. As from that time, the defendant had an obligation to identify whether or not the advertising sign was within the exclusion zone, then the defendant was required to implement ways to eliminate the risk. The defendant failed to take necessary action in that regard.
- (d)That there were available and suitable ways to eliminate the risk of electric shock namely by requesting Ergon to move or raise the power line. The defendant did not attempt to make any contact with Ergon in that regard.
- (e)That the cost of eliminating the risk was relatively minor especially in proportion to the risk involved.
In my view, the Prosecution have clearly proved beyond reasonable doubt the case against the defendant in relation to paragraph 9(d) of the particulars provided in the complaint and summons form”.
- [25]The magistrate held:
“I am satisfied to the required standard that:-
- (1)That the defendant failed to ensure the electrical safety of its workers and failed to discharge it duty as required under section 30 of the Electrical Safety Act.
- (2)That such failure exposed workers, including David Paul Nolan to risk of death, shock or serious injury caused by electricity.
- (3)That the defendant failed to do what was reasonably practicable to eliminate such risk by not either moving the advertising sign or requesting Ergon Energy to raise the power lines.
I consider that the Prosecution have proved each and every element of the complaint beyond reasonable doubt and that no valid defence has been raised by the defendant.”
Ground 2: The primary judge erred in his interpretation and application of sections 30 and 40C of the Electrical Safety Act 2002
- [26]The applicant’s submissions at the hearing of the application focussed upon ground 2 of the proposed appeal. The applicant argued that the magistrate and the primary judge erred:
- (a)by applying to proof of the element of alleged breach of the electrical safety duty a standard of proof less onerous than the required criminal standard of proof beyond reasonable doubt.
- (b)in relation to the element of causation, by failing to insist upon satisfaction that the alleged breach of duty was a significant or substantial cause of a person’s exposure to the hazard or the risk.
- (a)
The magistrate’s decision
- [27]The magistrate unambiguously purported to apply the criminal standard of proof beyond reasonable doubt, both in relation to (a) (breach of duty) and (b) (causation): see the text I have emphasised in [22], [24] and [25] of these reasons. It is true, as the applicant submitted, that the magistrate used the expressions (see [23] of these reasons) that it would reasonably be expected” (that Ergon Energy would have almost certainly have provided prompt advice to the defendant upon request) and “there would be a reasonable expectation” (that a positive outcome would have been achieved if the defendant had contacted Ergon). The use of those expressions at this interim stage in the magistrate’s reasons did not signal any departure from the requirement for proof of breach of duty beyond reasonable doubt. Up to that point the magistrate had referred only to part of the evidence in the prosecution case. The magistrate had not discussed important evidence, including evidence of Ms Olive.
- [28]Ms Olive’s evidence was to the effect that Ergon would have responded promptly to a request by someone who suggested that the conductors were close to a billboard sign where people were going to work; Ergon “would be out there straight away to ascertain if not there was risk” ([21] (2) of these reasons). After having measured the relevant distances, Ergon would take some immediate measures to control the risk, of which Ms Olive gave examples ([21] (2) of these reasons). Subsequently, Ergon would ensure the necessary extent of separation between the workplace by adopting the “cheapest and most efficient response”, the person who was to bear the cost being dependant upon who was responsible for the breach ([21] (3) of these reasons).
- [29]The applicant argued that the variety and generality of the measures described in [21](2) of these reasons resulted in uncertainty about the question whether Ergon would have moved the line, but that part of Ms Olive’s evidence described only the immediate measures Ergon would take upon discovery of the risk after being notified of the hazard. Ms Olive’s evidence to the effect that Ergon subsequently would have ensured the required extent of separation of the lines from the sign derives substantial support from the terms of the Code (see [16] and [18] of these reasons, particularly the italicised note in [18]).
- [30]Acknowledging the need to take care to avoid hindsight reasoning when having regard to the post-incident work done by Ergon, it remains legitimate to take into account the circumstance that after the occurrence of the incident Ergon raised the electric lines to ensure the necessary degree of separation from the advertising sign, at a relatively modest cost paid by the applicant. The inference is readily drawn that this was the cheapest and most efficient response to the risk. That response accorded with the hierarchy of responses to the risk mandated by the Code (see [18] of these reasons). With these matters in mind, upon Ms Olive’s evidence in [21](3) of these reasons the finding was plainly open that Ergon would have taken that same course. No proposition to the contrary was put to her in cross examination.
- [31]After the magistrate described Ms Olive’s evidence, the magistrate made the unequivocal finding “that there were readily available and inexpensive[6] ways of eliminating the risk by simply requesting Ergon to raise the power lines.” (The reference to “it is reasonably expected” in the following sentence concerns only the time within which Ergon would have responded; the magistrate found there would have been “a prompt response”, as Ms Olive had conveyed in her evidence.) That and the other findings by the magistrate describe a breach by the applicant of its electrical safety duty, as particularised in paragraph 9(d) of the particulars, to ensure that its business was conducted in such a way that the risk to any person of death, shock or injury caused directly by or originating from electricity was eliminated so far as was reasonably practicable (the element of breach in s 40C(c)). The findings set out in [24] of these reasons, each of which was justified by the evidence I have recited, compel the conclusion that there was nothing impractical about the applicant fulfilling its electrical safety duty in the way alleged by the respondent.
- [32]In relation to the element of causation in s 40C(c), the magistrate found beyond reasonable doubt that the risk of electric shock would have been eliminated if the applicant had requested Ergon to move or raise the power line: see [24](d), [25](3) and the concluding paragraphs of [24] and [25] of these reasons. Those findings satisfy the requirement for proof of the causal element, to which the applicant adverted in argument in this Court, that the applicant’s breach of duty was a significant or substantial cause of Mr Nolan being exposed to the risk of death or serious injury.[7]
- [33]Paragraph 9(d) of the particulars, read with the introductory words of paragraph 9, appears to have required the respondent to assume the onus of proving that the identified measure eliminated the electrical risk so far as was reasonably practicable. Were it not for the form of that particular, the respondent would not have been obliged to prove so much. In Bulga Underground Operations Pty Ltd v Nash[8] the New South Wales Court of Criminal Appeal explained, having regard to the objects of the New South Wales provision which are analogous to the objects of the Queensland provision,[9] “it would be surprising if liability could be avoided by reason of the fact that it could only be established that a particular method would merely manage risk rather than eliminate it.”[10] The court concluded that “a failure to take a measure which would have managed or mitigated a risk to the health, safety and welfare of an employee will breach s 8(1) of the Act, even if the measure does not entirely eliminate risk”.[11]
- [34]Furthermore, in relation to causation, again putting aside the form of paragraph 9(d) of the particulars, the relevant question is whether the applicant’s failure to ensure that its business was conducted in such a way that the risk to any person of death or serious injury or illness caused directly by or originating from electricity was eliminated so far as was reasonably practicable[12] exposed an individual to a risk of death or serious injury or illness. The question is not whether that failure caused the serious injuries suffered by Mr Nolan when he received an electric shock, but whether there was a causal relationship between the failure to ensure that the applicant’s business was conducted in the described way and the risk of death or serious injury to which the applicant was exposed.[13]
- [35]To the extent that paragraph 9(d) of the particulars of the charge required the respondent to assume an onus of proving more than was required to prove the offence under s 40C, the respondent fulfilled that onus for the reasons already given. I would hold that the magistrate did not err in any of the ways for which ground 2 of the applicant’s notice of appeal contends.
District Court decision
- [36]The primary judge observed:
“The issue the learned magistrate had to be satisfied of, beyond reasonable doubt, was that it was “reasonably practicable” for the defendant to arrange for Ergon to move the power line. How Ergon would have responded to that contact was, I consider, not a matter required to be proved beyond reasonable doubt.”[14]
- [37]The form of paragraph 9(d) arguably did require that in a case based upon that particular of the charge it was necessary for the respondent to prove beyond reasonable doubt that Ergon would have moved the overhead electric lines in a way that ensured maintenance of the relevant exclusion zones for persons working on the billboard. Accepting that this is reasonably arguable, it would be inappropriate to grant leave to appeal upon this point. The suggested error has no consequence in circumstances in which the magistrate found that the case alleged in paragraph 9(d) of the particulars was proved beyond reasonable doubt and, as I have concluded, that finding was unaffected by any of the errors for which the applicant contended.
- [38]Another reason for refusing leave to appeal upon ground 2 is that the evidence at the trial clearly proved beyond reasonable doubt the case particularised in paragraph 9(a) of the particulars in the magistrates finding. So much sufficiently appears from the brief summary in [15] of these reasons when it is understood in the context of the provisions of the Code in [16] – [18] of these reasons. The applicant’s conduct in requiring its employees to carry out the described work within what it learned only after the incident was an exclusion zone without first having taken any significant step to investigate the hazard in the many years following upon the applicant’s identification of that hazard was undoubtedly a breach of the applicant’s electrical safety duty and a substantial cause of its employees being exposed to a risk of death or serious injury. No real issue could arise about the practicality of the applicant conducting such investigations before requiring its employees to work near the overhead line.
Ground 1: The primary judge erred in law by failing to provide reasons for his decision to dismiss ground 4 of the appeal before him
- [39]Ground 4 of the appeal to the primary judge contended that the magistrate “erred at law by failing to apply or properly apply the correct standard of proof, namely, beyond reasonable doubt.” I have concluded that the magistrate did not make this suggested error when finding that the respondent had proved the case alleged in paragraph 9(d) of the particulars of the charge beyond reasonable doubt. For the reasons given in relation to ground 2, nothing is to be gained by adjudicating upon the contention in ground 1 of the proposed appeal to this court.
Ground 3: The primary judge failed to take into account the assessment of a relevant matter, namely the conduct of Ergon Energy, in his assessment of the conduct of the appellant
- [40]Section 208 of the Electrical Safety Regulation 2013 relevantly provides that “An electricity entity must ensure the distance from the conductors of its overhead electric lines to a structure is as required under - …for an overhead electric line, including a high voltage overhead service line – schedule 4, parts 2 and 4…”. There is a difference between the clearance distance the electricity entity is obliged to ensure under s 208 and the exclusion zone required by s 68 and other provisions of the Electrical Safety Regulation (which is described in the Code as a “safety envelope”), but a diagram in evidence in the prosecution case[15] shows the top corner of the sign was within both the required clearance distance under s 208 and the “safety envelope” under the Code.
- [41]Under ground 3 of the proposed appeal to the Court, the applicant argued that the primary judge refused to consider Ergon’s non-compliance with that regulation. The applicant argued that if the primary judge had considered Ergon’s non-compliance with the regulation, the primary judge would have identified that the decision whether to move the power lines was solely within the control of Ergon, that the influence of the applicant would have been limited in circumstances in which (the applicant argued) the magistrate was not satisfied beyond a reasonable doubt at first instance or on appeal that Ergon would have moved the power lines if requested, and the primary judge also would have had regard to a previous occasion when Ergon, through its expert contractors, had considered the proximity of the power lines to the subject billboard and not moved them. The applicant argued that it was difficult to see how, in circumstances where Ergon had itself examined the clearance distance between the power lines and the sign and failed to take any action, it was reasonably practicable for the appellant to compel Ergon to do something different.
- [42]It should first be noted that the proposition within the applicant’s argument, that the magistrate was not satisfied beyond a reasonable doubt that Ergon would have moved the power lines if requested, should not be accepted for reasons I have given in relation to ground 2.
- [43]The only grounds of the appeal to the District Court judge which refer to s 208, grounds 1 and 2, contend that the magistrate erred at law in failing to apply and give effect to s 208 and erred in law by not finding that the applicant had discharged its obligation by its reliance on Ergon to keep the power lines at a safe distance from the sign. In this respect the magistrate observed:
“I reject the submission on behalf of the defendant that in the circumstances, Ergon had an obligation to raise the power lines pursuant to s 208(1)(a) of the Electrical Safety Regulations. Section 208 imposes specific obligations on “electricity entities”. In the present case, the relevant “electricity entity” was Ergon Energy who actually owned the power lines. The Defence submitted that the obligation to move or raise the subject power lines related solely with Ergon Energy and not the defendant.
Whilst the hazard was actually made and owned by Ergon Energy, the Defendant was aware of the hazard since 5th March 2008.
I consider that the defendant owed a duty to its workers and such duty cannot be abrogated to Ergon. No proceedings against Ergon are before this court and it is not necessary for me to consider whether or not any possible breaches have been committed by Ergon”.
The magistrate then referred to the submission for the applicant that it was not reasonably practicable for the applicant to arrange for Ergon to move the power lines, referred to the evidence of Ms Olive and made the findings upon that topic set out earlier in these reasons.
- [44]The last three quoted sentences suggest that the first quoted sentence should not be understood as amounting to a finding that in law Ergon had no obligation under s 208 of the Electrical Safety Regulations; instead, the magistrate considered it unnecessary to consider that question.
- [45]The primary judge did not refuse to consider Ergon’s alleged non-compliance with s 208 of the Electrical Safety Regulation 2013. Rather, the primary judge referred to s 27B of the Electrical Safety Act in this context. It provides:
“(1) More than 1 person can concurrently have the same duty.
- (2)Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty.
- (3)If more than 1 person has a duty for the same matter, each person –
- (a)retains responsibility for the person’s duty in relation to the matter; and
- (b)must discharge the person’s duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.”
- [46]The primary judge observed that “the duty on the appellant, as identified in the ES Act s 27B, is a concurrent duty, and whether or not Ergon failed to comply with its obligations, the appellant could not discharge its own obligation by relying on Ergon to keep the powerlines at a safe distance from the sign.” I agree with that conclusion. The evidence does not raise an issue whether the applicant’s capacity to influence and control fulfilment of its duty might have been diminished to any extent by a duty owed by or any conduct of Ergon. No basis appears for not holding the applicant responsible for the offence otherwise established against it by the evidence.
- [47]The applicant argued that Ms Olive’s evidence about an earlier inspection of the sign required the magistrate to doubt whether Ergon would have moved the power line if the applicant had contacted Ergon and sought to arrange such a move. I would not accept that argument. The offence was alleged to have been committed in July 2016. Ms Olive gave evidence that the last time Ergon inspected the site was in October 2012, and that involved a visual inspection about clearance and distance.[16] She also gave evidence about identification of breaches “prior to 2016” [17]. It is apparent from her evidence that the method of inspection in 2016 was superior to that which was in use in 2012. Ms Oliver described “the old identification process” involving “non-electrically trade qualified contractors” visiting every pole every four years and conducting a visual check of “clearances between the conductors and structures”. She explained that it was “quite difficult to take those measurements when you’re not electrically trade qualified”, they were “often taken from the ground with stabilised binoculars”, and “the measurements were taken as best they could”. The new technology involved the use of lasers to detect and measure the clearances as part of the inspection process.
- [48]Ms Olive’s evidence does not support an inference that the fact that Ergon had not identified a breach upon the visual inspection in 2012 might have disinclined it to inspect the sign again in 2016 if the applicant had brought to Ergon’s attention the hazard to the applicant’s employees identified by the applicant. Defence counsel cross examined Ms Olive. He did not put any such proposition to her. The magistrate did not err by failing to draw the inference.
- [49]Ground 3 should be rejected.
Ground 4: The primary judge erred in law by treating contraventions of section 68 of the Electrical Safety Regulation as amounting to a contravention of section 30 of the Electrical Safety Act
- [50]The applicant submitted that section 68 of the Electrical Safety Regulation was not designed to facilitate proof of a risk for s 30(c) of the Electrical Safety Act. As the applicant pointed out, s 68 of the Electrical Safety Regulation 2013 does not contain a note of the kind described in s 8 of the same regulation which would indicate that “the provision sets out the way in which a person’s duty under that section of the Act is to be performed in relation to the matters and to the extent set out in the provision.”
- [51]This argument does not raise a viable ground for setting aside the conviction because the substance of s 68 is in any event repeated and elaborated upon in the Electrical Safety Code of Practice 2010 – Working Near Overhead and Underground Electric Lines, which was admissible in evidence in the proceedings against the applicant for the offence against the Act.
Proposed order
- [52]I would refuse the application for leave to appeal.
- [53]NORTH J: I agree with the reasons of Fraser JA and the order proposed by his Honour.
Footnotes
[1]McDonald v Queensland Police Service [2018] 2 Qd R 612 at [39].
[2] The magistrate found and it is not an issue that Ergon Energy owned the overhead electric power line.
[3] For ease of reference I have separated the passage into numbered paragraphs.
[4] The omission of the word “not” from the text was obviously a typographical error.
[5] The word in the text, “with”, was obviously intended to be “within”.
[6] The finding that this measure would be inexpensive was not necessary for a conclusion that the measure was “reasonably practicable”. Section 28(e) of the Act required reference to the cost of eliminating or minimising the risk only “After assessing the extent of the risk and the available ways of eliminating or minimising the risk”, but upon the magistrate’s findings the applicant had not made any such assessment.
[7] See Royall v The Queen (1991) 172 CLR 378 at 411; R v Sherrington & Kuchler [2001] QCA 105 at [4]. That test was adopted in relation to a provision analogous with s 40C of the Electrical Safety Act 2002 in Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338 at 363 [127] – [130] (Bathurst CJ, Hidden and Davies JJ). Those paragraphs require some adjustment in this case to take into account the additional requirement of s 40C(c) that the failure exposes an individual to a risk of “death or serious injury or illness”. It also should be noted that the duty in that case was not qualified by what was reasonably practical (which was instead provided for by a defence), but that does not affect the applicability of the test for causation.
[8] (2016) 93 NSWLR 338.
[9] Section 4 of the Electrical Safety Act 2002 identifies the purpose of that Act as being “directed at eliminating the human cost to individuals, families and the community of death, injury and destruction that can be caused by electricity” and s 5 describes how the purpose of the Act is to be achieved, including by “imposing duties on persons who may effect the electrical safety of others by their acts or omissions” and “establishing benchmarks for industry and the community generally through… (i) making regulations, ministerial notices and Codes of Practice about achieving electrical safety…”.
[10] (2016) 93 NSWLR 338 at 361 [110].
[11] (2016) 93 NSWLR 338 at 362 [118].
[12] The respondent did not particularise a case that, if it was not reasonably practicable to eliminate the risk, the applicant failed to ensure that the risk was minimised so far as it was reasonably practicable.
[13]Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338 at 363 [130].
[14] Reasons [70] – [72].
[15] Exhibit 11 at RB 338.
[16] Transcript 19 February 2019 at 1 – 107.
[17] Transcript 19 February 2019 at 1 – 101.