HCA: OHS “reasonably practicable” & contractors

Baiada Poultry Pty Ltd v The Queen [2012] HCA 14 (30 March 2012)

I refer you to the judgment summary which provides an overview of the facts.

Further to my earlier postings regarding the commencement of the Work Health & Safety Act 2011 on 1 January 2012 and the requirement for prosecution to prove “reasonably practicable”:

French CJ, Gummow, Hayne, Heydon and Crennan JJ –

15.

All elements of the statutory description of the duty were important. The words “so far as is reasonably practicable” direct attention to the extent of the duty. The words “reasonably practicable” indicate that the duty does not require an employer to take every possible step that could be taken. The steps that are to be taken in performance of the duty are those that are reasonably practicable for the employer to take to achieve the identified end of providing and maintaining a safe working environment. Bare demonstration that a step could have been taken and that, if taken, it might have had some effect on the safety of a working environment does not, without more, demonstrate that an employer has broken the duty imposed by s 21(1). The question remains whether the employer has so far as is reasonably practicable provided and maintained a safe working environment.

16.

The true import of Baiada’s submissions about reliance on its subcontractors was identified in the course of the argument about how the jury’s question should be answered. Trial counsel for the prosecution accepted, correctly, that Baiada’s reliance on expert subcontractors could be relevant only to the question of what was reasonably practicable for an employer in the circumstances. And although couched in terms of reliance on or entitlement to rely on subcontractors, it was evident that Baiada sought to say that the prosecution had not proved beyond reasonable doubt that Baiada’s exercising a right to control its subcontractors’ activities was a step that was reasonably practicable for Baiada to have taken to provide and maintain a safe working environment.

17.

All members of the Court of Appeal concluded[5] that the jury had been right to find that, under the arrangements Baiada had with DMP and Azzopardi Haulage, “Baiada had contractual power to give safety directions in relation to the loading activities at Houben Farm”. And, as already noted, all members of the Court of Appeal agreed[6] that the jury should have been directed in clear terms that, unless the prosecution had satisfied them beyond reasonable doubt “that Baiada’s engagement of DMP and Azzopardi Haulage was not sufficient to discharge Baiada’s obligation to do what was reasonably practicable to [provide] and maintain a safe work site in the particular respect in issue”, they (the jury) were bound to acquit. The Court of Appeal divided, however, on whether, despite the absence of this direction, no substantial miscarriage of justice had actually occurred.

33.

As the reasons of the majority in the Court of Appeal reveal by their reference[33] to Baiada checking compliance with directions it gave to DMP and Azzopardi Haulage, the question presented by the statutory duty “so far as is reasonably practicable” to provide and maintain a safe working environment could not be determined by reference only to Baiada having a legal right to issue instructions to its subcontractors. Showing that Baiada had the legal right to issue instructions showed only that it was possible for Baiada to take that step. It did not show that this was a step that was reasonably practicable to achieve the relevant result of providing and maintaining a safe working environment. That question required consideration not only of what steps Baiada could have taken to secure compliance but also, and critically, whether Baiada’s obligation “so far as is reasonably practicable” to provide and maintain a safe working environment obliged it: (a) to give safety instructions to its (apparently skilled and experienced) subcontractors; (b) to check whether its instructions were followed; (c) to take some step to require compliance with its instructions; or (d) to do some combination of these things or even something altogether different. These were questions which the jury would have had to decide in light of all of the evidence that had been given at trial about how the work of catching, caging, loading and transporting the chickens was done.

34.

As earlier explained, the jury’s guilty verdict told the Court of Appeal nothing about the issue of whether Baiada was bound to give directions or give directions and take steps to procure compliance with them. The jury had not been required to consider either issue. Reference by the majority in the Court of Appeal to the jury’s verdict was therefore irrelevant to the majority’s consideration of whether the evidence at trial showed beyond reasonable doubt that it was reasonably practicable for Baiada to have given directions to DMP about how to operate the forklift and to have checked that the instructions were observed.

35.

The Court of Appeal could conclude (as the majority did) that it was proved beyond reasonable doubt that it was reasonably practicable for Baiada to take these steps only if it was not open to a jury to conclude to the contrary. If it was open to a jury to reach a contrary conclusion, the point was not established beyond reasonable doubt. In particular, if it was open to a jury to conclude that it had not been proved beyond reasonable doubt that it was reasonably practicable for Baiada to give its subcontractors instructions about how they were to perform their work and to check that the instructions were observed, it was open to a jury to acquit.

36.

All members of the Court of Appeal agreed that the jury should have been instructed to consider the issue of reasonable practicability. And a direction of that kind was necessary only if the issue was a live issue at the trial – an issue which it was necessary for the jury to consider before returning its verdict[34]. The conclusion reached by the majority in the Court of Appeal – that the evidence established beyond reasonable doubt that Baiada’s effectively exercising its right to control its subcontractors was “reasonably practicable” – was inconsistent with the conclusion that the issue whether the prosecution had established this element beyond reasonable doubt was one which should have been put to the jury for its decision. No doubt the Court of Appeal could decide whether Baiada had the right to give instructions to its subcontractors. It may also be accepted that the evidence led at trial permitted the jury to conclude beyond reasonable doubt that it was reasonably practicable for Baiada to take steps to ensure compliance with instructions of that kind. But the evidence led at trial did not compel that conclusion.

37.

As has been noted, the majority in the Court of Appeal identified four considerations as supporting their conclusion[35] that “[i]t was entirely practicable for [Baiada] to require the contractors to put loading and unloading safety measures in place and to check whether those safety measures were being observed from time to time”. It may be doubted that one of those considerations (that the subcontractors had no specialist knowledge that Baiada lacked) bore upon whether it was practicable for Baiada to give instructions to its subcontractors or to check whether its instructions were being observed. And no consideration was given to how or at what cost the process of “checking” compliance with safety instructions could or would be undertaken or to the likelihood of the risk eventuating.

38.

The other matters to which the majority pointed in their reasons went, as they said, to whether it was practicable for Baiada to take the steps identified. But for the reasons given earlier, demonstration that some step could have been taken does not, without more, demonstrate that to fail to take that step was a breach of the obligation so far as was reasonably practicable to provide and maintain a safe working environment. The circumstances to which the majority pointed did not require the conclusion that not taking the identified steps was a breach of Baiada’s duty.

39.

It was, therefore, not open to the Court of Appeal to conclude from the record of the trial that the charge laid against Baiada was proved beyond reasonable doubt. Because the majority in the Court of Appeal were wrong to reach the conclusion that the evidence led at trial proved the guilt of Baiada beyond reasonable doubt, the proviso could not be engaged. The Court of Appeal could not be satisfied that no substantial miscarriage of justice had actually occurred.

 

Brisbane Barrister – David Cormack

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