Chugg v Pacific Dunlop Ltd

[1990] HCA 41

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(Decision by: Brennan J)

Chugg
vPacific Dunlop Ltd

Court:

Judges:
Brennan JDeane J
Dawson 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

Hearing date: 7-9 May 1990
Judgment date: 3 October 1990

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Decision by:
Brennan J

1. Although I am in general agreement with the judgment of Dawson, Toohey and Gaudron JJ., I would identify the two considerations which seem to me to dictate the construction which their Honours place on s.21(1) of the Occupational Health and Safety Act 1985 (Vict.) ("the Act"). First, the words "so far as is practicable" modify the verbs "provide and maintain" which create the obligation. As a matter of grammar the obligation imposed by s.21(1) is not an absolute obligation. Secondly, as a matter of substance the elements of the supposed qualification relate to elements of the same character as the elements of the obligation, namely, the taking of precautions required to make a working environment safe and without risks to health. The words "so far as is practicable" prescribe the measure of the precautions to be taken; they do not prescribe a qualification of a character different from the character of the elements of the obligation: see per Fullagar J. in Barritt v. Baker (1948) VLR 491, at p 495.

2. If the result of the informant's appeal depended on the construction of sub-s.(1) of s.21, these considerations would lead to a dismissal of the appeal. Reference to the informations, however, shows that the informant relied on par.(a) of s.21(2) to establish a contravention of s.21(1) and alleged facts which were intended to satisfy that paragraph. Although sub-s.(1) is the sub-section which creates the obligation and, in conjunction with s.47(1), creates the relevant offence, sub-s.(2) prescribes a series of duties a failure to fulfil any one of which amounts, by force of that sub-section, to a contravention of sub-s.(1). Therefore the only issues for determination on the hearing of the informations were whether the defendant had failed, in the respects alleged, "to provide and maintain plant and systems of work that are so far as is practicable safe and without risks to health". The words "so far as is practicable" in par.(a) of sub-s.(2) are an integral part of the clause which qualifies "plant and systems of work". To treat those words in that clause as words of exception would be to place a forced and unnatural construction on the clause. In the Courts below, attention was focussed on the modifying phrase in sub-s.(1) rather than on the corresponding words in sub-s.(2)(a). Although, in my view, that approach misconceived the true issue for determination, it led to no error in the result. I would therefore dismiss the appeal.

3. I do not rest this conclusion on the consideration that the Act provides only a criminal sanction for a contravention of s.21(1). When, on its true construction, a statute confers on an individual a right to damages for breach of a statutory duty, the measure of the duty does not change with the character of the proceedings taken to enforce it. If, on a prosecution, proof which excludes a qualification of a duty is necessary to establish the offence, then, in a civil claim, proof which does not exclude the qualification fails to prove a breach of the duty. And if that breach of the duty be not proved, the common law remedy of damages is not available: Nimmo v. Alexander Cowan and Sons Ltd. (1968) AC 107, at pp 115,134; Reg. v. Hunt (1987) AC 352, at p 383. The principle is stated in the majority judgment in Waugh v. Kippen [1986] HCA 12; (1986) 160 CLR 156, at p 165:

"the process of construction must yield for all purposes a definitive statement of the incidence of an obligation imposed on the employer. The legislature cannot speak with a forked tongue. Although the standard of proof applicable to criminal proceedings for a breach of the obligation will differ from that applicable to civil proceedings and the law may provide specific defences by way of answer to a prosecution which have no relevance to civil proceedings (as in Sovar v. Henry Lane Pty. Ltd. ((1967) 116 CLR 397)), the elements that make up the obligation will be the same in each case. For example, in the present case one could not conclude in favour of an objective criterion of the likelihood of a risk of injury in the context of a criminal proceeding and a subjective criterion for the purposes of a civil action."

4. I agree with Dawson, Toohey and Gaudron JJ., for the reasons they give, that the special leave to appeal given to the defendant should be revoked.

5. The informant sought to appeal on a point which the majority of the Full Court thought it unnecessary to consider but on which Ormiston J. would have allowed the appeal to that Court. The point relates to the sufficiency of the prosecution's evidence to establish an element in the offence, either safety or practicability. However, it was conceded that, if the special leave to appeal given to the defendant were revoked, the informant's special leave to appeal should be limited to exclude the point relating to the sufficiency of evidence. As the defendant's special leave is revoked, the informant's special leave should be so limited.

6. I would therefore agree with the order proposed by Dawson, Toohey and Gaudron JJ.