Chugg v Pacific Dunlop Ltd
[1990] HCA 41(Judgment by: Deane J)
Chugg
vPacific Dunlop Ltd
Judges:
Brennan J
Deane JDawson J
Toohey J
Gaudron J
Subject References:
Criminal Law (Vict.)
Burden of proof
Statutory offence
Failure by employer to provide safe working environment so far as practicable
Onus of proof of practicability
Occupational Health and Safety Act 1985 (Vict.), s. 21.
Statutes
Interpretation
Construction that would promote purpose or object of Act to be preferred to one that would not
Interpretation of Legislation Act 1984 (Vict.), s. 35(a).
Legislative References:
Occupational Health and Safety Act 1985 (Vict.) - s 21
Interpretation of Legislation Act 1984 (Vict.) - s 35(a)
Case References:
Australian Oil Refining Pty. Ltd. v Bourne - (1980) 54 ALJR 192; 28 ALR 529
Barritt v Baker - (1948) VLR 491
Darling Island Stevedoring and Lighterage Co. Ltd. v Jacobsen - [1945] HCA 22; (1945) 70 CLR 635
Deming No. 456 Pty. Ltd. v Brisbane Unit Development Corporation Pty. Ltd. - [1983] HCA 44; (1983) 155 CLR 129
Director of Public Prosecutions v United Telecasters Sydney Ltd. - [1990] HCA 5; (1990) 64 ALJR 181
Dowling v Bowie - [1952] HCA 63; (1952) 86 CLR 136
Dunlop Rubber Australia Ltd. v Buckley - [1952] HCA 72; (1952) 87 CLR 313
Gibson v British Insulated Callenders Construction Co. - (1973) SC(HL) 15
Jones v Dunkel - [1959] HCA 8; (1959) 101 CLR 298
Kingshott v Goodyear Tyre and Rubber (No. 2) - (1987) 8 NSWLR 707
Neill v N.S.W. Fresh Food and Ice Pty. Ltd. - [1963] HCA 4; (1963) 108 CLR 362
Nimmo v Alexander Cowan and Sons Ltd. - [1968] AC 107
R. v Adams - [1935] HCA 62; (1935) 53 CLR 563
Reg. v Edwards - (1975) QB 27
Reg. v Hunt - (1987) AC 352
Rice v Henley - [1914] HCA 75; (1914) 19 CLR 19
Sovar v Henry Lane Pty. Ltd. ( - (1967) 116 CLR 397
Vines v Djordjevitch - [1955] HCA 19; (1955) 91 CLR 512
Walker v Bletchley Flettons Ltd. - (1937) 1 All ER 170
Waugh v Kippen - [1986] HCA 12; (1986) 160 CLR 156
Wilson v Wilson's Tile Works Pty. Ltd. - [1960] HCA 63; (1960) 104 CLR 328
Woolmington v Director of Public Prosecutions - [1935] UKHL 1; (1935) AC 462
Judgment date: 3 October 1990
Judgment by:
Deane J
I agree with the judgment of Dawson, Toohey and Gaudron JJ. I add some brief comments for myself.
2. Both as a matter of language and, more importantly, as a matter of substance, s.21 of the Occupational Health and Safety Act 1985 (Vict.) ("the Act") is ambiguous about whether it was the legislative intent that the phrase "so far as is practicable" (in sub-ss.(1) and (2)(a)) should be read as constituting an element of a primary obligation or as representing a "qualification (accompanying) the description of the offence" (see Magistrates (Summary Proceedings) Act 1975 (Vict.), s.168(1)). In my view, the fact that the section is concerned only with the criminal liability of an employer is of critical importance in the resolution of that ambiguity. The section does not control or affect the employer's civil liability to an injured worker. If it did, the considerations favouring construing the words "so far as is practicable" as constituting a qualification in relation to which the employer bears the onus of proof would, in my view, have prevailed at least in relation to the civil liability of the employer to such an employee (see, e.g., Kingshott v. Goodyear Tyre and Rubber (No. 2) (1987) 8 NSWLR 707, at pp 714-716, 722-723, but cf. at pp 727ff.).
3. Those considerations are, however, either unpersuasive or displaced by countervailing considerations in so far as the construction of s.21, which is an exclusively penal provision, is concerned. For one thing, the informant in a prosecution under s.21 must be the responsible Minister or an inspector. Such an informant would have the resources of government available to him and would not be expected to be in a position of disadvantage, vis-a-vis the employer, as regards what was and was not practicable in terms of maintaining a safe working environment. Indeed, the responsible Minister or an inspector may well have more general information and more ready access to expert advice than an accused employer. It is true that an injured industrial worker in this country is likely to enjoy the support of a trade union. Not all such workers are members of a union however, and it cannot be assumed that the Legislature has proceeded on the mistaken basis that every injured worker will enjoy union support. For another thing, the considerations which support a benevolent construction of a provision conferring rights of compensation upon an employee (see, e.g., Rice v. Henley [1914] HCA 75; (1914) 19 CLR 19, at p 22; Wilson v. Wilson's Tile Works Pty. Ltd. [1960] HCA 63; (1960) 104 CLR 328, at p 335) are not present in the case of a provision which is concerned only with the imposition of criminal liability and which accordingly must be strictly construed (see, e.g., R. v. Adams [1935] HCA 62; (1935) 53 CLR 563, at pp 567-568; Deming No. 456 Pty. Ltd. v. Brisbane Unit Development Corporation Pty. Ltd. [1983] HCA 44; (1983) 155 CLR 129, at p 145).
4. There is one further matter which I would mention. It is that I am unable to see any acceptable basis in principle for an immutable or overriding general rule of statutory construction precluding the discernment or imputation, in an appropriate context, of a legislative intent that a provision such as s.21(1) or s.21(2)(a) should, if it is made to perform the dual function of imposing criminal liability upon an employer and conferring compensatory rights upon an injured employee, be construed distributively with the result that, in a case of ambiguity, what is properly seen as an element of the offence for the purposes of a criminal prosecution of an employer may be seen as a qualification or exception for the purposes of civil proceedings by an injured employee. In view of the weight of authority favouring such an immutable or overriding general rule however (see, in particular, the extract from the majority judgment in Waugh v. Kippen [1986] HCA 12; (1986) 160 CLR 156, at p 165, set out in the judgment of Brennan J.), it would seem desirable that there be prompt legislative action, in places where such provisions are made to perform that dual function, to clarify whether it was in fact the legislative intent that the onus of proving what was or was not practicable in an employer's business should be cast upon an injured employee.