Paradise Outdoor Building Company Pty Ltd v Steward

DISTRICT COURT OF QUEENSLAND

CITATION:	Paradise Outdoor Building Company Pty Ltd v Steward
[2020] QDC 346
PARTIES:	PARADISE OUTDOOR BUILDING COMPANY PTY LTD
(appellant)
v
SHARON MARIA STEWARD
(respondent)
FILE NO/S:	D31/19
DIVISION:
PROCEEDING:	s 222 Appeal
ORIGINATING  COURT:	Mackay Magistrates Court
DELIVERED ON:	27 November 2020
DELIVERED AT:	Brisbane
HEARING DATE:	26 May 2020
JUDGE:	Dearden DCJ
ORDER:	1. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – DUTY
OF CARE - whether the learned magistrate erred at law in failing to apply and give effect to section 208(1)(a) of the
Electrical Safety Regulation 2013 – whether the learned
magistrate erred in law by not finding that the appellant had
discharged its obligation – whether the learned magistrate
with the obligation in section 68 of the Electrical Safety
erred at law by finding that the appellant failed to comply section 30 of the Electrical Safety Act 2002 (Qld) - whether the learned magistrate erred at law by failing to apply or properly apply the correct standard of proof, namely, beyond
reasonable doubt – whether the learned magistrate erred at
law in failing to give effect to criminal negligence concepts in the learned magistrate's application of the reasonably practicable test under section 28 of the Electrical Safety Act
2002 (Qld) – whether the appellant abandoned this ground on the day of the hearing – whether the learned magistrate erred
in law by making a finding that was not reasonably open on the evidence, namely, that it was reasonably practicable for the appellant to undertake further enquiries in relation to the
distance between the power line and the sign – whether the
learned magistrate erred in law by making a finding that was not reasonably open on the evidence, namely, that the appellant should have contacted Ergon Energy in relation to the risk and that the appellant knew or ought reasonably to
have known that it could have done so prior to the incident –
whether the learned magistrate erred in law by making a finding that was not reasonably open on the evidence, namely, that had Ergon been informed of the proximity of the power line to the sign prior to the incident, it would have
arranged to raise the power line – whether the learned
magistrate erred in law by failing to find that an employee knew that they should have fed the sail track from the bottom
of the sign – whether the learned magistrate erred in law by
not finding that the method of feeding the sail track from the bottom was a reasonably practicable way to manage risk in
all of the circumstances – whether the learned magistrate
erred in law by making a finding that was not reasonably open on the evidence, namely, that it was reasonably
practicable to require the appellant to move the sign –
whether the learned magistrate erred in law by making a finding that was not reasonably open on the evidence, namely
that there was a high risk – whether the finding of guilt in this
matter was unsatisfactory and not reasonably open on the
evidence before the learned magistrate – whether the learned
magistrate has erred in law by finding a failure to take reasonable practicable steps; and in making that finding, has
failed to provide adequate reasons – whether the learned
magistrate erred in law by failing to take into consideration a relevant matter in the application of section 28 of the
Electrical Safety Act 2002 (Qld) – whether the learned
magistrate erred in law by failing to take into consideration a relevant matter in the application of section 28 of the Electrical Safety Act 2002 (Qld), namely, the conduct of
Ergon Energy – whether the learned magistrate erred in law
by failing to take into consideration a relevant matter in the application of section 28 of the Electrical Safety Act 2002 (Qld), namely, the history of safely changing the sign under
the existing process – whether the learned magistrate erred in
law by failing to take into consideration a relevant matter in the application of section 28 of the Electrical Safety Act 2002 (Qld), namely, the knowledge the appellant had, or could reasonably be expected to have had about the hazard or the
risk, and the ways of eliminating the hazard or the risk –
whether the learned magistrate erred in finding that a witness was was a truthful witness, and that evidence was to be accepted over others, and in making that finding, has failed to
provide adequate reasons – whether the learned magistrate
erred in law by finding the appellant guilty on a basis that was not charged, namely, that the appellant had not moved
the relevant sign – whether the order which the learned
magistrate should have made was to find the appellant not
guilty, and to discharge the appellant in respect of the complaint.
LEGISLATION:	Criminal Code 1899 (Qld) s 23, s 245, s 277
Electrical Safety Act 2002 (Qld) s 10, s 28, s 40C, s 30
Electrical Safety Code of Practice 2010 (Qld)
Electrical Safety Regulation 2013 (Qld) s 68, s 208(1)(a)
Evidence Act 1977 s 40C(a); 40C(b); s 30(1) & (2)
Justices Act 1886 (Qld) s 222, s 223(1), 225
Penalties and Sentences Act 1992 (Qld) s 32
CASES:	DL v R (2018) 266 CLR 1; [2018] HCA 26
DPP (Cth) v Poniatowska (2011) 244 CLR 408; [2011] HCA 43
Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 21
Mbuzi v Torcetti (2008) 50 MVR 451; [2008] QCA 231
R v Doolheee [2017] 262 CLR 402; [2017] HCA 36
COUNSEL:	K. Mellifont QC with A.J. Smith for the appellant
L. Crowley QC with S. Harburg for the respondent
SOLICITORS:	Carter Newell Lawyers for the appellant
Office of Work, Health and Safety Prosecutor for the respondent
Introduction

1. The appellant, Paradise Outdoor Building Company Pty Ltd, was convicted in the Mackay Magistrates Court on 17 April 2019 after a two-day hearing, of one charge contrary to section 40C of the Electrical Safety Act 2002 (Qld) (ES Act).[1]

   [1]            Outline of Submissions on behalf of the Respondent, AB 666.

   The charge

2. On 12 July 2016, at Balberra in the Mackay Magistrates Courts District, the appellant, Paradise Outdoor Building Company Pty Ltd, being a person who has an electrical safety duty under section 30 of the ES Act, to ensure that its business or undertaking is conducted in a way that is electrically safe, failed to comply with that duty, which failure exposed individuals to a risk of death or serious injury, contrary to section 40C of the ES Act.[2]

   [2] Complaint and summons dated 24 April 2018 AB 4-6.

   Particulars

3. The complaint and summons particulars are as follows:[3]

   [3]            AB 4-6.

“1.  At all material times the [appellant]:

(a)	carried on a business or undertaking which included the fabrication, construction of billboards and the erection and display of advertising signs on roadside billboards owned by the [appellant], from business premises situated at Unit 3, 719-725 Woolcock Street, Mount Louisa in the State of Queensland;
(b)	in the course of the business or undertaking, engaged workers including David Paul NOLAN (NOLAN);
(c)	had a duty to ensure that its business or undertaking, which included the performance of work near to exposed parts, was conducted in a way that is electrically safe, which included a duty to ensure persons performing the work are electrically safe.

2.          At all material times, energised 33 kVolt high voltage overhead electric lines (the overhead electric lines) which form part of the works of Ergon Energy Corporation Limited (the electricity entity), ran along the verge parallel to the Bruce Highway, Balberra, at a height of approximately 9 metres.[4]

[4]            Ibid.

3.          At all material times, the [appellant] owned and maintained a billboard located in close proximity to the overhead electric lines near the electricity entity's pole designated number 4018298 (the billboard).

4. The top corner of the billboard closest to the Bruce Highway was at a height of approximately 6.6 metres [and] was located within the clearance distance for the conductors of the overhead electric lines as prescribed by section 208(1)(a) and Schedule 4 Part 4 Items 5(a)(i) and (b)(i) of the Electrical Safety

Regulation 2013.

5.          On 12 July 2016:

(a) Two workers, NOLAN and Shaun David TRAYNOR (TRAYNOR) were engaged in changing a canvas advertising "skin" on the billboard; (b) NOLAN was standing on a ladder which was attached to the top of the billboard, holding an aluminium sail track and feeding it vertically down into the sleeve at the roadside edge of the skin; (c) The aluminium sail track either contacted or came into close proximity with an overhead electric line, causing an electric shock pathway to flow from the electric line through NOLAN to the mass of the earth; (d) The electric shock sustained by NOLAN threw him a distance of in excess of 5 metres, from the ladder to the ground below.

6.          In the premises:

(a) performance of work in the vicinity of an overhead high voltage electric lines; and (b) using conductive objects, namely aluminium sail tracks;

posed an electrical risk to persons of death or serious injury from exposure to 33kVolts of alternating electrical current.

7.          The electrical risk to which NOLAN was exposed, was realised when the electrical shock caused him to sustain serious injuries caused directly by electricity or originating from electricity, including:

(a) Fractures to left and right sides of pelvis; (b) Fractures to the C5/6 vertebrae; (c) T5-T8 anterior vertebrae fractures; (d) Fracture to right 7th rib; (e) Punctured right lung; (f) Burns to both hands; (g) Vertebral artery dissection; (h) Fracture to sacral ala.

8.          The [appellant] 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.

9.          The [appellant] 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 practical by:

(a) ensuring that no person including workers NOLAN and TRAYNOR and any conductive objects handled by those persons, come within an unsafe distance of a high voltage overhead electric 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 electric lines; (b) ensuring that the billboard was not located within the clearance distance for the conductors of the overhead electric lines as prescribed by section 208(1)(a) and Schedule 4 Part 4 Items 5(a)(i) and (b)(i) of the Electrical Safety Regulation 2013; (c) managing the risks to health and safety associated with electrical risks at the workplace comprising the billboard and surrounding areas, and in particular the electrical risks associated with overhead electric lines in compliance with section 11 of the Electrical Safety Regulation 2013; and carry out an adequate risk assessment of the workplace and implement suitable control measures to ensure exclusion zones were maintained in accordance with section 68 and Schedule 2 Part 2 of the Electrical Safety Regulation 2013; and Chapters 2 and 7 of the Electrical Safety Code of Practice 2010 - Working near overhead and underground electric lines; (d) arranging for the electricity entity to move the overhead electric lines to ensure maintenance of the relevant exclusion zones for persons working at and on the billboard; (e) providing non-conductive sail tracks for use by persons working in the vicinity of overhead electric lines; (f) installing barrier caps at the tops of billboards in the vicinity of exclusion zones to prevent the feeding of sail tracks from the top of the media skin

contrary to the Acts in such case made and provided.”

Grounds of appeal

4. The appellant’s grounds of appeal are:

   Ground 1

5. The learned magistrate erred at law in failing to apply and give effect to section 208(1)(a) of the Electrical Safety Regulation 2013 (ES Regulation).[5]

   [5]            Notice of Appeal filed by the Appellant dated 16 May 2019.

   Ground 2

6. The learned magistrate erred in law by not finding that the appellant had discharged its obligation by its reliance on Ergon to keep the power lines at a safe distance from the sign.[6]

   [6]            Ibid.

   Ground 3

7. The learned magistrate erred at law by finding that the appellant failed to comply with the obligation in section 68 of the ES Regulation, which required the appellant to keep David Nolan from entering the exclusion zone, and thereby breached its obligation under section 30 of the ES Act.[7]

   [7]            Ibid.

   Ground 4

8. The learned magistrate erred at law by failing to apply or properly apply the correct standard of proof, namely, beyond reasonable doubt. [8]

   [8]            Ibid.

   Ground 5

9. The learned magistrate erred at law in failing to give effect to criminal negligence concepts in the learned magistrate's application of the reasonably practicable test under section 28 of the ES Act.[9]

   [9]            Ibid.

   Ground 6

10. The appellant abandoned this ground on the day of the hearing.[10]

    [10]           Appeal T1-4 l 38.

    Ground 7

11. The learned magistrate erred in law by making a finding that was not reasonably open on the evidence, namely, that it was reasonably practicable for the appellant to undertake further enquiries in relation to the distance between the power line and the sign.[11]

    [11]           Ibid.

    Ground 8

12. The learned magistrate erred in law by making a finding that was not reasonably open on the evidence, namely, that the appellant should have contacted Ergon Energy in relation to the risk and that the appellant knew or ought reasonably to have known that it could have done so prior to the incident.[12]

    [12]           Ibid.

    Ground 9

13. The learned magistrate erred in law by making a finding that was not reasonably open on the evidence, namely, that had Ergon been informed of the proximity of the power line to the sign prior to the incident, it would have arranged to raise the power line.[13]

    [13]           Ibid.

    Ground 10

14. The learned magistrate erred in law by failing to find that Mr Nolan knew that he should have fed the sail track from the bottom of the sign.[14]

    [14]           Ibid.

    Ground 11

15. The learned magistrate erred in law by not finding that the method of feeding the sail track from the bottom was a reasonably practicable way to manage risk in all of the circumstances.[15]

    [15]           Ibid.

    Ground 12

16. The learned magistrate erred in law by making a finding that was not reasonably open on the evidence, namely, that it was reasonably practicable to require the appellant to move the sign.[16]

    [16]           Ibid.

    Ground 13

17. The learned magistrate erred in law by making a finding that was not reasonably open on the evidence, namely that there was a high risk.[17]

    [17]           Ibid.

    Ground 14

18. The finding of guilt in this matter was unsatisfactory and not reasonably open on the evidence before the learned magistrate.[18]

    [18]           Ibid.

    Ground 15

19. The learned magistrate has erred in law by finding a failure to take reasonable practicable steps; and in making that finding, has failed to provide adequate reasons.[19]

    [19]           Ibid.

    Ground 16

20. The learned magistrate erred in law by failing to take into consideration a relevant matter in the application of section 28 of the ES Act, namely, the conduct of Mr Nolan.[20]

    [20]           Ibid.

    Ground 17

21. The learned magistrate erred in law by failing to take into consideration a relevant matter in the application of section 28 of the ES Act, namely, the conduct of Ergon Energy.[21]

    [21]           Ibid.

    Ground 18

22. The learned magistrate erred in law by failing to take into consideration a relevant matter in the application of section 28 of the ES Act, namely, the history of safely changing the sign under the existing process.[22]

    [22]           Ibid.

    Ground 19

23. The learned magistrate erred in law by failing to take into consideration a relevant matter in the application of section 28 of the ES Act, namely, the knowledge the appellant had, or could reasonably be expected to have had about the hazard or the risk, and the ways of eliminating the hazard or the risk.[23]

    [23]           Ibid.

    Ground 20

24. The learned magistrate erred in finding that Mr Nolan was a truthful witness, and that his evidence was to be accepted over Messrs Traynor and Ward, and in making that finding, has failed to provide adequate reasons.[24]

    [24]           Ibid.

    Ground 21

25. The learned magistrate erred in law by finding the appellant guilty on a basis that was not charged, namely, that the appellant had not moved the relevant sign.[25]

    [25]           Ibid.

    Ground 22

26. The order which the learned magistrate should have made was to find the [appellant] not guilty, and to discharge the [appellant] in respect of the complaint.[26]

    [26]           Ibid.

Further ground of appeal

27. Without objection, the appellant sought and was granted leave to add a further ground of appeal at the commencement of the hearing.[27]

    [27]           Appeal T 1-9.

    Ground 23

    The learned magistrate erred in making the following findings:

    “That despite the [appellant] being aware of the closeness of the advertising

    sign to the power line, the [appellant] made no inquiries with Ergon Energy in relation to ways to accurately measure the distance from the sign to the powerline or ways to eliminate the risk of exposure to electricity from the

    overhead power lines.” (Page 5 of the Reasons, at point 12, AR 226);

    and

    “There is no evidence to suggest that the [appellant] made any attempt

    whatsoever to contact Ergon in relation to:

(a)	Whether or not the advertising sign was actually within the 3

metre exclusion zone” (Page 6 of the Reasons, at the middle

paragraph, AR 227.)

and

“That the [appellant] knew since 5th March, 2008 that the advertising sign was

close to the exclusion zone. As from that time, the [appellant] had an obligation to identify whether or not the advertising sign was within the exclusion zone and if it was within the exclusion zone, then the [appellant] was required to implement ways to eliminate the risk. The [appellant] failed to take necessary action in that regard.

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

[appellant] did not attempt to make any contact with Ergon in that regard.”

(Page 7 of the Reasons, at points (c) and (d), AR228).[28]

[28]           Supplementary Outline of Submissions for the Respondent dated 25 May 2020.

Facts

28. The appellant conducts a business displaying advertising on outdoor billboards. On 12 July 2016 two employees of the appellant, David Nolan and Shaun Traynor were required to change the advertising skin on a billboard (designated MK1560N) owned by the appellant at Balberra, near Mackay. In order to change the advertising skin, it was necessary to feed an aluminium sail track on the side of the billboard.

29. Mr Nolan climbed the billboard and fed the three metre electrically conductive sail track in from the top corner of the billboard, which was 2.6 metres from overhead power lines. Both the top corner of the billboard, and Mr Nolan, were within a three-

    metre exclusion zone established under the “Electrical Safety Code of Practice 2010 – Working near Overhead and Underground Electrical Lines” and the ES Regulation.

    Mr Nolan sustained an electrical shock through the sail track, was thrown from the billboard, and suffered significant physical injuries.

    The law – appeals

30. As Bowskill J stated in McDonald v Queensland Police Service [2017] QCA 255,

    [47]:-

    “It is well established that, on an appeal under [Justices Act 1886

    (Qld)] s. 222 by way of re-hearing, the District Court is required to

    conduct a real review of the trial, and the Magistrate’s reasons, and

    make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to

    the Magistrate’s view. …[In] order to succeed on such an appeal, the

    appellant must establish some legal, factual or discretionary error.”

    [Citations deleted].

31. In Forrest v Commissioner of Police [2017] QCA 132, Sofronoff P stated that:-

    “…an appellate court hearing an appeal by way of re-hearing must

    conduct a real review of the evidence and make up its own mind about

    the case.”[29]

    [29]           Forrest v Commissioner of Police [2017] QCA 132, p.5.

    Legislative background

32. The legislative background to the charge heard before the learned magistrate has been helpfully summarised by the respondent as follows:-

“5.	Section 40C of the ES Act is a Category 2 offence – it is a failure to
comply with a duty, exposing an individual to a risk of death or serious injury or illness. The Act establishes a tiered offence system, where a Category 1 offence requires reckless exposure to a risk of death or serious injury or illness, and a Category 3 offence is a simple breach of duty, that does not require a risk of death or serious injury or illness. The applicable maximum penalties cascade accordingly.
6.	The Act imposes a range of duties (“electrical safety duties”) on persons
including, amongst others, electricity entities, persons conducting business or undertakings of various descriptions, designers and manufacturers of electrical equipment, installers and repairers, workers, and so on. The relevant duty for present purposes is the general duty
imposed under s30(1) – to ensure that the person’s business or undertaking
is conducted in a way that is electrically safe. The duty includes ensuring persons performing the work are electrically safe (s30(2)(c)).
7.	Electrically safe is designed in s 10(2) of the ES Act and includes that a person or property is free from electrical risk (s 10(2)(a)), and for the way a business or undertaking is conducted, that all persons are free from electrical risk from the conduct of the business or undertaking (s 10(2)(b)).
8.	Electrical risk is defined in s 10(1) of the ES Act and means, in relation to a person, the risk to a person of death, shock or injury caused directly by electricity or originating from electricity (s 10(1)(a)).
9.	The term free from electrical risk is defined in s 10(4) of the ES Act and means that electrical risk to the person or property has been eliminated, so far as is reasonably practicable (s 10(4)(a)); or, if it is not reasonably practicable to eliminate electrical risk to the person or property, the risk has been minimized so far as is reasonably practicable (s 10(4)(b)).
10.	Section 28 of the ES Act sets out that reasonably practicable 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 risk; and

(ii)    ways of eliminating or minimizing 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 minimizing the risk, the cost associated with available ways of eliminating or minimizing the risk, including whether the cost is grossly disproportionate to the risk.

11. Section 210(2) of the ES Act provides, among other things, that a

regulation may prescribe ways of discharging a person’s electrical safety

duty (s 210(2)(a)), and ways of ensuring the electrical safety of persons or property (s 210(2)(b)).

12. Section 44 of the ES Act provides that the Minister may make a code of

practice that states a way of discharging a person’s electrical safety duty.

The code of practice is then admissible in a proceeding as evidence of whether or not a duty under this Act has been complied with (s 45(2)). The court may regard the code as evidence of what is known about a hazard or risk (s 45(3)(a)); and rely on the code in deciding what is reasonably practicable in the circumstances (s 45(3)(b)).

The Electrical Safety Regulation 2013 (the ES Regulation)

13. Regulation 68(1) of the ES Regulation requires that a person conducting a business or undertaking at a workplace ensure, so far as is reasonably practicable, that no person, plant or thing at the workplace comes within an unsafe distance of an overhead or underground electric line. A contravention of this regulation is an offence under the Regulation (maximum penalty: 60 penalty units).

14. Regulation 69(1) of the ES Regulation then provides that an unsafe distance from an overhead electric line means within the exclusion zone. Schedule 2 Part 2 Division 1 of the ES Regulation provides that the exclusion zone for 33kVolt electric lines is 3 metres.

15. Regulation 8 of the ES Regulation provides:

“If a note at the foot of a provision of this Regulation states ‘ES Act’

followed by a reference to a section number, 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 the extent set out in the

provision.”

16. Regulation 11 of the ES Regulation cites s 30 of the ES Act in a note at the foot of the provision. Regulation 11 provides that a person conducting a business or undertaking at a workplace must manage risks to health and safety associated with electrical risks at the workplace in accordance with the Work Health and Safety Regulation 2011, Chapter 3, Part 3.1.

Work Health and Safety Regulation 2011 (the WHS Regulation)

17.   Chapter 3 Part 3.1 of the WHS Regulation requires a duty holder to identify reasonably identifiable hazards giving rise to risks (s34), and manage them by eliminating them, so far as is reasonably practicable, or if not reasonably practicable, by minimising them (s35).

18.   Section 36 provides for a hierarchy of control measures, if it is not reasonably practicable to eliminate the risk. The hierarchy calls for substituting the hazard, isolating the hazard, then implementing engineering controls. If those control measures do not remove the risk, then administrative control measures, and finally the use of personal protective equipment are lower in the order of control measures.

19.   Control measures must be reviewed where there are changes at the workplace or new hazards or risks are identified (s38).

Electrical Safety Code of Practice 2010 – Working near Overhead and

Underground Electric Lines

20. Sections 1-3 of the code of practice reference the electrical risks for working near overhead power lines, the relevant risk management process and confirm the exclusion zones prescribed by the ES Regulation. The code of practice suggests making contact with the electricity entity to

identify the hazards, and control the risks.”[30]

[30]           Trial Exhibit 2, Code of Practice, ss 2.1, 2.2, 2.3 (which specifically refers to re-routing the electric line away from the work area by arrangement with the electricity entity).

33. The prosecution case is then conveniently summarised in the respondent’s outline as

    follows:

    “21. The Prosecution case was that the Appellant had committed an offence under s40C of the ES Act, by breaching its duty[31] to ensure its business or undertaking was conducted in a way that was electrically safe. The work to be undertaken was not electrically safe,[32] because it was not free from

    [31] Under s30 of the ES Act.

    [32] S10(2) ES Act.

    electrical risk[33] – that is, electrical risk to the company’s workers had not

    [33] S10(4) ES Act.

    been eliminated, so far as was reasonably practicable.[34] The proximity of the billboard to the power lines at the time of the incident placed the Appellant’s workers within the 3 metre exclusion zone,[35] which exposed

    [34] S10(4)(a) ES Act.

    [35] Regs. 68 and 69 ES Regulation; Code of Practice.

    the workers to electrical risk.[36] The Prosecution case was that the Appellant company had reasonably practicable means available to it to ensure electrical safety.[37] They had the ability to eliminate the risk by contacting the electricity entity to move the power lines. The Appellant took no steps to contact the electricity entity and made no such enquiries.

    [36] S10(1) ES Act.

    [37] S28 ES Act.

    22.   The evidence at hearing established that the Appellant company had

    owned the relevant billboard since 1 November 2005.[38] The company’s

    [38]           Trial Exhibit 9.

    business included changing the advertising skins on advertising signs.[39] On 12 July 2016, an employee of the Appellant company, Mr Nolan, was standing on a ladder attached to the top of a billboard on the verge of the Bruce Highway, Balberra.[40]

    [39] Admissions [1].

    [40]           Admissions [2], [3], [6].

    23.    He was holding a three metre long aluminium sail track, feeding it down into the sleeve of a canvas advertising skin, when the sail track either contacted or came into close proximity with a 33kVolt overhead electric line, causing an electric shock to Mr Nolan.[41] He suffered significant injuries, most of which were sustained in being thrown from the ladder. He fell over 5 metres to the ground.

    [41]           That Nolan was holding an aluminium sail track, that the sail track was a conductive object, and that he received an electric shock were all admitted and not in issue.

    24.    The top corner of the billboard was 2.6m from the nearest electric power line.[42]

    [42]           Trial Exhibit 11.

    25.   The appellant company had identified power lines as being in close proximity to that particular sign during a routine inspection on 5 March 2008.[43] That the power lines were a hazard was then noted on the documentation for that site and the company asserted that it had put in place processes to feed the sail track from the bottom of the sign.[44] The

    [43]           Trial Exhibit 9, letter from Terry McKenzie dated 20 March 2017.

    [44]           Trial Exhibit 9, letter from Terry McKenzie dated 20 March 2017.

    workers’ documentation on the day in question identified power lines, but

    did not specifically instruct them to feed the sail track from the bottom. There was no evidence that the company actually knew the sign was within the 3 metre exclusion zone, or that it had conducted any enquiries to find out how close the power lines really were.

    26. The Prosecution case was that by requiring its workers, including Mr Nolan, to work in the vicinity of overhead high voltage electrical lines, (particularly within the exclusion zone at the top corner of the billboard), whilst holding a conductive sail track, the Appellant failed to ensure the electrical safety of its workers, and thus breached its duty under s30. The

    company’s failure exposed workers, including Mr Nolan, to a risk of

death, shock or serious injury either caused by, or originating from, electricity.

27.   The Prosecution case at first instance was that the Appellant had the capacity to eliminate the electrical risk so far as was reasonably practicable, by one of six alternative means.[45] The means on which the

[45]           Complaint particulars [9], [AB6].

Prosecution primarily relied was particular 9(d) of the Complaint – to

arrange for Ergon Energy to move the power lines so as to maintain the

relevant exclusion zone for the Appellant company’s workers. This was

done subsequent to the incident in question, at relatively small cost to the Appellant.[46]

28.    The defence argument advanced at first instance was that the company had put in place a procedure of feeding the sail track from the bottom of the sign (not from the top down) when power lines were present, and that Mr Nolan had not complied with this procedure. However, the

Prosecution’s case was that this would constitute a low level

administrative response in accordance with the WHS Regulations hierarchy of controls (s36). Even if such a procedure were established, the Prosecution case was that this would not constitute a defence to the charge. The Prosecution case was that the only way to eliminate the risk was to remove the requirement for work to be done inside the exclusion zone. So much was required by the duty imposed on the Appellant under the ES Act, and by virtue of the ES Regulation and the applicable code of practice. The Appellant had available to it a reasonably practicable means

by which this could be achieved.”[47]

[46]           T1-104.30 [AB112].

[47]           AB 669-671, Outline of Submissions for the Respondent [21] – [28] – [AB669] – [AB671].

Discussion

34. Ground 1 – the learned magistrate erred at law in failing to apply and give effect to

    s 208(1)(a) of the ES Regulation.

35. Ground 2 – the learned magistrate erred in law by not finding that the appellant had

discharged its obligation by its reliance on Ergon to keep the powerlines at a safe distance from the sign.

36. Grounds 1 and 2 can conveniently be considered together. The appellant identifies that the learned magistrate found:

    “I reject the submission on behalf of the defendant that in the

    circumstances, Ergon had an obligation to raise the powerlines pursuant to 208(1)(a) of the ES Regulation. Section 208 imposes

    specific obligations on ‘electricity entities’. In the present case, the

    relevant ‘electricity entity’ was Ergon Energy who actually owned the

    powerlines. The defence submitted that the obligation to move or raise the subject powerlines related solely with Ergon and not the defendant.

    Whilst the hazard was actually made and owned by Ergon Energy, the defendant was aware of the hazard since 5 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.”[48]

    [48]           AB 226 – Decision p.5

37. Section 208(1)(a) of the ES Regulation provides:

    “An electricity entity must ensure the distance from the conductors of its overhead

    electric lines to a structure is as required under –

(a) For an overhead electric line, including a high voltage overhead service line – Schedule 4, Parts 2 and 4; …”

38. As the appellant identifies, the learned magistrate found that “the relevant ‘electricity

    entity’ was Ergon Energy who actually owned the powerlines”,[49] but rejected the

    submission that the “obligation to move or raise the subject powerlines related solely

    with Ergon Energy and not the [appellant]”.[50]

    [49]           AB 226 – Decision p 5.

    [50]           AB 226 – Decision p 5.

39. There is no dispute that the corner of the billboard was within the relevant clearance zone prescribed by Schedule 4 of the ES Regulation. However, the learned magistrate

    concluded that “whilst the hazard was actually made and owned by Ergon Energy,

    the defendant was aware of the hazard since 5 March 2008”.[51]

    [51]           AB 226 – Decision p 5.

40. It is clear, pursuant to the ES Act s 27B(1), that “more than one person can concurrently have the same duty” pursuant to the ES Act. Accordingly, the

    submission that “it is impermissible for a person to be convicted in respect of an

    omission it was not under a legal obligation to perform”[52] is misconceived, given that

    the alleged breach to the ES Act s 40C is the failure by the appellant to comply with the duty imposed on it, not the failure to compel a third party to comply with its own obligations. Accordingly Ground 1 fails.

    [52]           AB 627 – Outline on behalf of the appellant, relying on DPP (Cth) v Poniatowska (2011) 244 CLR

41. Similarly, with respect to Ground 2, 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.

42. In the circumstances, Ground 2 also fails.

43. Ground 3 - The learned magistrate erred at law by finding that the appellant failed to comply with the obligation in s 68 of the ES Regulation, which required the appellant to keep David Nolan from entering the exclusion zone, and thereby breached its obligation under s 30 of the ES Act.

44. The appellant relies on the finding of the learned magistrate:

    “That the defendant knew since 5 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 and if it 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.”[53]

    [53]           AB 228, Decision p.7.

45. The appellant correctly identifies this as a reference to the exclusion zone under the

    ES Regulation s 68 but then submits that it is “wrong at law to conclude that a failure

    to identify whether the sign was in the exclusion zone was a breach of s 68 of the

    Electrical Safety Regulation 2013” and further that it was “wrong at law to conclude

    that a breach of s 68 amounts to a breach of s 30 of the ES Act”.[54]

    [54]           AB 630, Outline on behalf of the Appellant, para 36.

46. Although a breach of the ES Regulation s 68 is an offence, the appellant submits that a breach of the ES Regulation s 68 is not relevant to determine whether the appellant discharged its duty under the ES Act s 30.

47. In my view, the purpose of the ES Regulation ss 68, 69 and Schedule 2, Part 2, Division 1 is to create a duty upon the appellant to ensure that its workers and any conductive item they are holding does not come within the unsafe distance of three metres from the powerlines, which constitutes the imposition of an absolute obligation to eliminate risk for untrained workers. However, the existence of the obligation under the ES Regulation s 68 does not, I consider, exclude or discharge the

    appellant’s duty pursuant to the ES Act s 30.

48. This ground of appeal fails.

49. Ground 4 - The learned magistrate erred at law by failing to apply or properly apply the correct standard of proof, namely, beyond reasonable doubt.

50. It is uncontroversial that the prosecution was required to prove, beyond reasonable doubt, every element of the offence charged.[55]

    [55]           R v Doolheee [2017] 262 CLR 402; [2017] HCA 36.

51. The defendant was charged with a Category 2 offence pursuant to the ES Act s 40C based on a failure to comply with its duty under the ES Act s 30.

52. The elements of the Category 2 offence under the ES Act s 40C are as follows:

[56] Electrical Safety Act 2002 (Qld) s 40C(a); s 30(1) & (2). [57] Electrical Safety Act 2002 (Qld) s 40C(b). [58] Electrical Safety Act 2002 (Qld) s 40C(c). 1. The person had an electrical safety duty;[56] 2. The person failed to comply with that duty;[57] 3. The failure exposes an individual to a risk of death or serious injury or illness.[58]

53. In respect of the first element, the appellant clearly had at the relevant time “an electrical safety duty” and the learned magistrate concluded (properly, in my view)

    that at least from 5 March 2008, the defendant had been aware that the overhead electric power line was a hazard to workers working on advertising sign MK1560N.[59]

    [59]           AB 227 (Decision p 6).

54. The learned magistrate goes on to state in his decision:

    “I appreciate that the evidence does indicate that the defendant was

    aware that the relevant advertising sign was definitely within the three

    metre exclusion zone.”[60]

    [60]           AB 227 (Decision p 6.)

55. This sentence, however, appears to contain a typographical error - the evidence and context supports a reading of the sentence in these terms:

    “I appreciate that the evidence does not indicate that the defendant

    was aware that the relevant advertising sign was definitely within the

    three metre exclusion zone.”

56. That reading is reinforced by the next sentence in the decision which states:

    “However the evidence is clear that the defendant was aware that as

    from 5 March 2008 the overhead electrical power lines were identified

    as a hazard.”[61]

    [61]           AB 227 (Decision p 6).

57. Given that the learned magistrate has (correctly in my view) found beyond reasonable

    doubt that the appellant had “an electrical safety duty”, the next step is whether the

    appellant has “failed to comply with that duty”. It then follows that the learned magistrate must be persuaded beyond reasonable doubt, that the failure “to comply with that duty” consequently “exposes an individual to a risk of death or serious injury

    or illness”.

58. The evidence is clear that the corner of the advertising sign was within the three metre exclusion zone; any person climbing to the top of that zone would have intruded even further into the exclusion zone; a person holding a conductive object (e.g. an aluminium sail track) would have been even closer again to the overhead electrical power lines; and that person would undoubtedly (as in fact occurred) have been

    exposed “to a risk of death or serious injury or illness”.

59. The submission made by the appellant is that:

    “To be satisfied that a failure to comply with a duty exposed a person

    to a risk of death or serious injury, the court must be satisfied that the specific failure, had it not occurred, would have prevented the exposure. In this case, that means that the court must be satisfied, beyond a reasonable doubt, that had the appellant contacted Ergon [who was the entity responsible for the electric power lines], Ergon

    would have moved the power lines.”[62]

    [62]           AB 634 (Appellant’s Submissions p 17, para 47).

60. The appellant frames their argument as follows:

    “48 The following findings of fact were made notwithstanding

    absence of proof beyond reasonable doubt in respect of them:

(a)	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 [AB 227, Decision pp 5-6];
(b)	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 [AB 226, Decision p 5];
(c)	It is clear that there were readily available and inexpensive ways 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, that a prompt response would have been forthcoming from Ergon [AB 227, Decision p

6].”

61. The appellant’s submission is that it was necessary for the learned magistrate to be

    satisfied beyond reasonable doubt that, if contacted, Ergon would have raised the

    relevant power line. Instead, the learned magistrate refers to a “reasonable expectation” which, in the appellant’s submission, does not meet the requisite

    standard of proof.

62. The evidence of Ms Chanelle Olive from Ergon was as follows:

[63]           AB 113; T1-105, ll 19-35.

“Q	…. If an enquiry was made about the closeness of a conductor
where people were working or to assign, as in this case, what
would Ergon’s response be?
A	Well we would be out there straight away to ascertain if not there was a risk [sic] and we would make some immediate measures to control the risk of that particular circumstance. It could be turning the light off. It could 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 lot list [sic] of them that are available in a guideline to
our staff of the steps they can take instantly. 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 or it was very unclear and we had no proof whatsoever of what had occurred,
then we would often – more often than not we would just rectify
the defect and bear the cost ourselves.”[63]

63. The appellant’s submission is that in the light of that evidence from Ms Olive, the

learned magistrate could not properly have made the findings of fact referred to above, beyond reasonable doubt.

64. In consequence, the appellant submits that the learned magistrate was in error in concluding beyond reasonable doubt that by contacting Ergon, the appellant would have eliminated the risk, and submits further that there is no evidence on which it could be concluded that the appellant could have compelled Ergon to move the power lines.[64]

    [64]           AB 635 (Appellant’s Submissions paras 50-51).

65. The respondent submits, correctly, that the learned magistrate explicitly stated that he was satisfied of the elements beyond a reasonable doubt.[65]

    [65]           AB 223, Decision p.2.

66. The respondent further submits that it was not necessary to prove beyond reasonable

    doubt that:

    “…had the Appellant made arrangements in accordance with

    particular 9(d), Ergon would have moved the line pursuant to that

    request. The Appellant’s obligation was to do what was reasonably

    practicable to ensure electrical safety. It was sufficient for the Court to conclude, beyond reasonable doubt, that a request to Ergon was a reasonably practicable means by which the risk might have been

    eliminated.”[66]

    [66]           AB 673-674 (Respondent’s Submissions paras 40-41).

67. In my view, it was necessary for the prosecution to prove beyond reasonable doubt

    that the appellant failed to comply with their “electrical safety duty” which was a duty to ensure the relevant property was “electrically safe”,[67] which in turn meant that the

    property was “free from electrical risk”[68] which relevantly means that:-

    “Electrical risk … has been eliminated, so far as is reasonably

    practicable”.[69]

    [67] ES Act s. 10(3).

    [68] ES Act s. 2(a).

    [69] ES Act s. 10(4)(a).

68. In practical terms, the case against the appellant was litigated, as particularised, that:-

    “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:

    …

    (d) arranging for the electricity entity to move the overhead electric lines to ensure maintenance of the relevant exclusion zones for

    persons working at and on the billboard.”[70]

    [70]           AB 6, (Complaint and summons) para 9(d).

69. In my view, the learned magistrate had to be satisfied, beyond reasonable doubt, that a request to Ergon was a reasonably practicable means by which the risk might have been eliminated.

70. The learned magistrate’s conclusion (relevantly) was 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”.[71]

    [71]           AB 228, Decision p.7.

71. 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.

72. It follows that the learned magistrate has correctly applied the applicable standard of proof, namely beyond reasonable doubt. This ground of appeal fails.

73. Ground 5 - The learned magistrate erred at law in failing to give effect to criminal

    negligence concepts in the learned magistrate’s application of the reasonably

    practicable test under s 28 of the ES Act.

74. The appellant submits that the concept of criminal negligence should be imported into a consideration of the ES Act s 40C offence which is the subject of this appeal.

    ES Act s 40E provides:

    For an offence against sections 40C and 40D, the Criminal Code sections 23 (1) and 24 are subject to division 2.

    Note—

    This rule is similar to the rule in the Criminal Code section 23 (1) (extended to section 24), which makes that provision subject to express provisions of the Criminal Code relating to negligent acts and omission.

75. With respect, the structure of the offence provisions commencing with the ES Act s

    40B Reckless conduct – Category 1, through the ES Act s 40C Failure to comply with electrical safety duty – Category 2 and the ES Act s 40D Failure to comply with electrical safety duty – Category 3, clearly indicates the legislative intention,

evidenced by the ES Act s 40E, that criminal negligence is excluded in respect of [72] ES Act s.40C & 40D. [73] ES Act s.40B Category 2 & 3 offences,[72] but included in respect of Category 1 offences.[73]

76. It follows that there is no element of criminal negligence implied into the consideration of the ES Act s 40C offence. This ground of appeal fails.

77. Ground 6 - As previously noted, the appellant abandoned this ground on the day of hearing.[74]

    [74]           Appeal T1-4, l 38.

78. Ground 7 - The learned magistrate erred in law by making a finding that was not reasonably open on the evidence, namely, that it was reasonably practicable for the appellant to undertake further enquiries in relation to the distance between the powerline and the sign.

79. The appellant submits that the finding by the learned magistrate in the following terms was not reasonably open:

    “That the defendant knew since 5 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 and if it 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.”[75]

    [75]           AB 228, Decision p.7.

80. The appellant submits:-

1. The conclusion by the learned magistrate appears to have been based on a letter dated 20 March 2017 from the appellant to Workplace Health and Safety

Queensland which stated “powerlines were identified as a hazard on 5/3/2008

during a routine risk assessment”,[76] but did not refer to the exclusion zone.

2.    The conclusion that the powerlines were identified as a hazard because they were near the exclusion zone was a conclusion not reasonably open on the evidence.

3.    It was not reasonably practicable to measure the distance between the powerline and the sign, based on the evidence of the witnesses.[77]

[76]           AB 534.

[77]           AB 642-643.

81. With respect, the conclusion that the learned magistrate drew (identifying the

    appellant’s obligation to identify whether or not the sign was within the exclusion

    zone and if it was to implement ways to eliminate the risk) was clearly a conclusion that was reasonably open on the evidence, in the absence of any evidence to the contrary from the appellant. The evidence indicated that the powerlines had been identified as a hazard as of 2008 given their proximity, and there was no evidence before the learned magistrate that the appellant had taken any steps (with the assistance of Ergon or any other person or entity) to accurately determine the distance between the sign and the powerlines. Whether or not the appellant had identified that the sign was within the exclusion zone did not determine whether the appellant discharged its duty pursuant to the ES Act s 30.

82. This ground of appeal fails.

83. Ground 8 - The learned magistrate erred in law by making a finding that was not reasonably open on the evidence, namely, that the appellant should have contacted Ergon Energy in relation to the risk and that the appellant knew or ought reasonably to have known that it could have done so prior to the incident.

84. The appellant submits that the following finding by the learned magistrate was not open:-

    “There is no evidence to suggest that the defendant made any attempt

    to contact Ergon in relation to:-

(a)	whether or not the advertising sign was actually within the three-metre exclusion zone; or
(b)	the feasibility or expensive raising or moving the powerline. 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.”[78]

[78]           AB 227, Decision p.6.

85. The appellant submits that there was no evidence before the court that any employee of the appellant knew that it was open to contact Ergon and have them measure the distance between the sign and the powerline for them, nor was there any evidence that the appellant ought to have known that Ergon would attend and measure that distance. In those circumstances it is submitted that the learned magistrate ought not to have proceeded on the premise that the appellant was obliged to contact Ergon and ask it to measure the relevant distance.

86. Pursuant to the Code of Practice[79] ss 2.1, 2.2 and 2.3, the appellant should reasonably have understood that it could contact the electricity entity regarding electricity lines.

    [79]           AB 229-389, Trial Exhibit 2.

87. This ground fails.

88. Ground 9 - The learned magistrate erred in law by making a finding that was not reasonably open on the evidence, namely, that had Ergon been informed of the proximity of the powerline to the sign prior to the incident, it would have arranged to raise the powerline.

89. This ground arises from the finding by the learned magistrate:

    “That there were available and suitable ways to eliminate the risk of

    electric shock namely by requesting Ergon to move the powerline. The defendant did not attempt to make any contact with Ergon in that

    regard.”[80]

    [80]           AB 228, Decision p.7.

90. The appellant submits that contacting Ergon did not eliminate the risk which remained the same before or after that contact, and further, that the learned magistrate could not have been satisfied beyond reasonable doubt that a request of Ergon would have resulted in elimination. In particular, the appellant points to the evidence of Ms Olive identifying a range of different steps which might be taken if a risk was identified.[81] The appellant submits that it was necessary for the prosecution to establish that the appellant could have compelled Ergon to move the line.

    [81]           AB 113, T1-105, ll 19-35.

91. The issue in respect of Ground 9 is that it was not for the prosecution to prove, beyond reasonable doubt, that a request by the appellant to Ergon would have resulted in the elimination of risk, but it was sufficient for the court to conclude, beyond reasonable doubt, that a request to Ergon was a reasonably practicable means by which the risk might have been eliminated. The conclusion was therefore open to the learned magistrate.

92. This ground of appeal fails.

93. Ground 10 - The learned magistrate erred in law by failing to find that Mr Nolan knew that he should have fed the sail track from the bottom of the sign.

94. The appellant submits that the learned magistrate failed to make any finding about whether or not Mr Nolan should have fed the sail track from the bottom of the sign, in circumstances where evidence was given by both Mr Traynor and Mr Ward about the procedure in place for feeding sail tracks from the bottom of a sign.[82]

    [82]           Shaun Traynor AB 65, T1-57, l 30, AB 78, T1-70, l 31; Stuart Ward AB 84, T1-76, l 27.

95. The respondent submits (and I accept) that a finding was not necessarily required as to whether Mr Nolan should have fed the sail track from the bottom, given that this method of addressing the risk was a low level administrative control, well down the hierarchy of control measures under the Code of Practice[83] and WHS Regulation ss 35-36. In any event, it is submitted (and I accept) that a practice of feeding the sail track from the bottom, even with appropriate instruction and training, would not

    constitute a defence to the charge, because it failed to satisfy the appellant’s duty to

do what was reasonably practicable to eliminate the risk, which such a practice would [83]           AB 229-389, Trial Exhibit 2. not achieve.

96. This ground of appeal fails.

97. Ground 11 - The learned magistrate erred in law by not finding that the method of feeding sail track from the bottom was a reasonably practicable way to manage risk in all of the circumstances.

98. The appellant submits that it took all reasonably practicable steps to protect the health and safety of Mr Nolan prior to the incident, and in particular, over changes of the skin for a period of 10 years there had been no mishap; the degree of potential harm was high but had to be balanced against the low likelihood of risk if the sail track was fed from the bottom; and the system of feeding the sail track from the bottom had adequately managed the hazard and the risk over many years, including Mr Nolan changing the skin on the sign at least seven times prior to 11 July 2016, while under observation, and without any report of difficulties. It is further submitted that it was reasonable for the appellant to rely on Ergon to manage the clearance distance; that there was no evidence to support the proposition that the appellant ought to have known that Ergon would come and measure the sign upon request; the work method chosen was the most suitable way to minimise the relevant risk; working within the exclusion zone does not of itself expose a person to the risk of serious injury or death; and that non-conductive sail tracks and barrier caps were not reasonably practicable nor workable.

99. The learned magistrate was entitled, on the evidence, to reject the defence submission that it was established practice to feed the sail track from the bottom.

[100]    As discussed in respect of Ground 10, an established practice (if it had been implemented), of invariably feeding the sail track from the bottom, with appropriate instruction and training of workers in the practice, would still not constitute a defence

to the charge, because it would not have fulfilled the appellant’s duty to do what was

reasonably practicable to eliminate the risk.

[101] This ground fails.

102. Ground 12 - The learned magistrate erred in law by making a finding that was not reasonably open on the evidence, namely, that it was reasonably practicable to require the appellant to move the sign.

103. The appellant relies on the finding by the learned magistrate that:-

     “The defendant failed to do what was reasonably practicable to

     eliminate such risk by not by the moving of the advertising sign or

     requesting Ergon Energy to raise the powerline.”[84]

     [84]           AB 228, Decision p 7.

[104]    The appellant submits that the learned magistrate could not have been satisfied beyond reasonable doubt that it was reasonably practicable for the appellant to move the sign or cause it to be moved.

[105]    The respondent notes that each of the parties agreed and confirmed at the commencement of the trial that proof beyond reasonable doubt that any one of the particulars stated within paragraph 9 of the complaint would be sufficient to prove the offence. [85] Given that the learned magistrate was satisfied beyond reasonable doubt on the basis of particular 9(d) of the complaint, it was unnecessary to consider whether the other particulars had been proven, and accordingly a finding that the appellant failed to do what was reasonably practicable by moving the sign was, I accept, unnecessary and immaterial, given that the learned magistrate concluded that the appellant failed to do what was reasonably practicable by requesting Ergon Energy move or raise the powerline.

[85]           AB 18-19 – T1-10, l 44 – T1-11, l 26.

106. It follows that this ground of appeal fails.

107. Ground 13 - The learned magistrate erred in law by making a finding that was not reasonably open on the evidence, namely that there was a high risk.

108. This ground of appeal relies on the learned magistrate’s finding that:-

     “having regard to the nature of the work and the limited training provided

     to workers, the likelihood of the risk of electric shock was high.”[86]

     [86]           AB 228, Decision p 7.

109. The appellant submits that although the consequences of coming into contact with the powerlines were high, the likelihood of this occurring was low and there had been no previous occurrence since the purchase of the sign by the appellant in 2005.

110. The respondent submits, correctly in my view, that the finding that the likelihood of the risk of electric shock was high was clearly open on the evidence, given that workers were engaged by the appellant to feed a three metre conductive object vertically onto a billboard that was 2.6 metres from the nearest powerline, and any assessment of the likelihood of an event is not determinable simply by whether such an event has occurred in the past.

111. In my view, the learned magistrate’s finding that there was “a high risk” was clearly

     open on the evidence. This ground of appeal fails.

112. Ground 14 - The finding of guilt in this matter is unsatisfactory and not reasonably open on the evidence before the learned magistrate.

113. This ground was essentially a “catch all” ground. Given that each of the other grounds

     pressed by the appellant has failed, this ground also fails.

114. Ground 15 - The learned magistrate has erred in law by finding a failure to take reasonable practicable steps, and in making that finding, has failed to provide adequate reasons.

115. The appellant submits (correctly) that failure to give adequate reasons is an error of law.[87]

     [87]           Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 21; DL v R (2018) 266 CLR 1; [2018] HCA 26.

[116]    The appellant identifies that the learned magistrate’s assessment of what is “reasonably practicable” appears in five subparagraphs in the judgment, in the

following terms:-

“Upon consideration of the provisions of s 28 of the Electrical Safety

Act in relation to what is reasonably practicable in ensuring the 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 powerline was death or severe injury.
(c)	That the defendant knew since 5 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 and if it 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 powerline. 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.” [88]

[88]           AB 228, Decision p 7.

117. The appellant argues that these reasons do not set out the basis for the conclusion that the likelihood of electric shock was high; suggests that the risk was high due to limited training; rely on a misunderstanding of the nature and effect of the exclusion zone; do not address what it was the appellant knew or ought to have known about the hazard or risk, nor how the appellant knew or ought to have known that the powerline was in the exclusion zone, and that it could contact Ergon to have the relevant distance measured; or could have caused Ergon to have the powerlines raised; did not identify why the learned magistrate was satisfied beyond reasonable doubt that contacting Ergon would have resulted in the risk being eliminated; did not explain how moving the relevant powerline resulted in the risk being eliminated; did not provide an assessment of the measures taken by the appellant and whether they were reasonably practicable; did not assess the additional controls proposed by the prosecution in light of all of the measures taken by the appellant; nor consider the proposed controls in the context of what was actually being done by the appellant.[89]

     [89]           AB 656-658, Outline on behalf of the Appellant, para 103.

118. With respect, the learned magistrate’s reasons, although succinct, set out a series of

     conclusions on the final page of the judgment, which represent an adequate and sufficient conclusion in the light of the arguments of the parties, the issues which required a decision, identified the resolution of relevant issues of law and fact, and provided an explanation as to how the arguments of the parties were dealt with and the conclusion, and verdict were arrived at.[90]

     [90]           DL v R (2018) 356 ALR 197, [33].

119. In the circumstances, I consider adequate reasons have been provided. This ground of appeal fails.

120. Ground 16 - The learned magistrate erred in law by failing to take into consideration a relevant matter in the application of s 28 of the ES Act, namely the conduct of Mr Nolan.

121. This ground relates to the finding of the learned magistrate that:-

     “I accept the submission by the prosecution that this court should not

     attempt to apportion blame on the work of David Nolan in relation to the complaint before the court. Under the provisions of s 30 of the Electrical Safety Act, the defendant had a duty to ensure that its

     workers were electrically safe.”[91]

     [91]           AB 226, Decision p 5.

122. The submission by the appellant is that the learned magistrate failed to consider the conduct of Mr Nolan which, it is submitted, was relevant because the appellant had an obligation to him that was not absolute, but to do what was reasonable. In particular, the appellant submits that the conduct of Mr Nolan in attempting to feed the sail track from the top of the sign was clearly well outside the normal approach.[92]

     [92]           AB 659, Outline on behalf of the Appellant, para 106.

123. This ground, however, cannot succeed, because the issue to be determined is the

     appellant’s alleged breach of duty imposed on it pursuant to the ES Act s 30 and

     consequently, the conduct of Mr Nolan is irrelevant. This ground of appeal fails.

124. Ground 17 - The learned magistrate erred in law by failing to take into consideration a relevant matter in the application of s 28 of the ES Act, namely the conduct of Ergon Energy.

125. The appellant’s argument in respect of Ergon is a direct parallel to the argument in

     respect of Mr Nolan in Ground 16, namely that Ergon had a responsibility in respect of the location of the powerline and it was relevant to consider the extent to which the appellant relied on Ergon to manage the risk, given Ergon was the owner of the powerline, was responsible to maintain the clearance distance pursuant to ES Regulation s 208(1)(a), and the appellant had no right to require Ergon to move the sign.

126. However, as the learned magistrate found, the appellant owed a duty to its workers, that duty could not be abrogated to Ergon, which was not on trial,[93] and any issues in

     [93]           AB 226, Decision p 5.

     respect of Ergon were irrelevant to the determination of the appellant’s alleged breach

     of the duty imposed upon it by the ES Act s 30.

127. This ground of appeal fails.

128. Ground 18 - The learned magistrate erred in law by failing to take into consideration a relevant matter in the application of s 28 of the ES Act, namely, the history of safely changing the sign under the existing process.

129. I consider that it was open to the learned magistrate “to reject the defence submission

     that it was established practice to feed from the bottom, given the evidence of Mr Nolan and [Mr] Traynor that they regularly fed from the top.”[94] However, as

     [94]           AB 675, Outline of Submissions of the Respondent, para 47.

     identified in respect of Grounds 10 and 11, even if the appellant had established at trial a practice of feeding the sail track in from the bottom, that would not be sufficient

     to constitute a defence to the charge, given the appellant’s duty to do what was

     reasonably practicable to eliminate the risk.

130. It follows that this ground fails.

131. Ground 19 - The learned magistrate erred in law by failing to take into consideration a relevant matter in the application of s 28 of the ES Act, namely the knowledge the appellant had, or could reasonably be expected to have had about the hazard or the risk, and the ways of eliminating the hazard or the risk.

132. The appellant’s submission is that the ES Act s 28(c) identifies that one of the relevant

     factors in assessing what is “reasonably practicable” is:

“(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.”

133. With respect, the evidence indicates the awareness of the appellant that the powerlines represented a hazard, and in accordance with the Code of Practice,[95] the appellant ought reasonably to have known that it could contact the electricity entity regarding the electricity line.

     [95]           AB 229-389, ss 2.1, 2.2 and 2.3.

134. This ground of appeal fails.

135. Ground 20 - The learned magistrate erred in finding that Mr Nolan was a truthful witness, and that his evidence was to be accepted over Messrs Traynor and Ward, and in making that finding, has failed to provide adequate reasons.

136. The appellant submits that the learned magistrate concluded that all witnesses other

     than Stuart Ward gave “honest evidence to the best of their recollection without any

     attempt to mislead the court”,[96] but did not give any reasons for that finding about

     [96]           AB 223, Decision p. 2.

     credibility, nor assess inconsistencies between the evidence of David Nolan and the evidence of Shaun Traynor, in circumstances where the learned magistrate should have found that David Nolan was not a reliable or credible witness.

137. With respect, the learned magistrate dealt, briefly but appropriately, with the credit of witnesses[97]; did so in the context of the significance of that evidence; and where relevant, identified what evidence was relied upon from each of the various witnesses.[98]

     [97]           AB 223, Decision p. 2.

     [98]           AB 224-225, Decision pp. 3-4.

138. With respect, I accept that the reasons given by the learned magistrate were adequate and sufficient in so far as they were necessary for the conclusions that he drew from that evidence.

139. This ground of appeal fails.

140. Ground 21 - The learned magistrate erred in law by finding the appellant guilty on a basis that was not charged, namely, that the appellant had not moved the relevant sign.

141. The appellant’s submission in respect of this ground relates to the finding by the

     learned magistrate:

     “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 powerlines.”[99]

     [99]           AB 228, Decision p. 7.

[142]    This ground is essentially a mirror of Ground 12. The finding by the learned

magistrate that the appellant “failed to do what was reasonably practicable by moving

the sign” was unnecessary and immaterial[100], and does not detract from the

[100]         AB 677, Outline of Submissions for the Respondent para 57.

fundamental finding that what the appellant failed to do that was reasonably practicable was request that Ergon Energy move or raise the powerlines. In the circumstances, the learned magistrate was persuaded beyond reasonable doubt in respect of particular 9(d). It was therefore unnecessary to consider whether the other particulars had been proved (the parties having agreed that it was sufficient to prove the offence that any one of the particulars in 9(d) be proved beyond reasonable doubt).[101]

[101]         AB 18-19 – T1-10 – 1-11.

143. This ground of appeal fails.

144. Ground 22 - The order which the learned magistrate should have made was to find the appellant not guilty, and to discharge the appellant in respect of the complaint.

145. This ground only succeeds if the appellant has demonstrated an error in respect of any of the other grounds pursued on appeal. As is clear from these reasons, such an error has not been demonstrated and this ground of appeal fails.

146. Ground 23 - The learned magistrate erred in making the following findings:

     “That despite the [appellant] being aware of the closeness of the

     advertising sign to the power line, the [appellant] made no inquiries with Ergon Energy in relation to ways to accurately measure the distance from the sign to the powerline or ways to eliminate the risk of exposure to

     electricity from the overhead power lines.” (Page 5 of the Reasons, at point

     12, AR 226);

     and

     “There is no evidence to suggest that the [appellant] made any attempt

     whatsoever to contact Ergon in relation to: -

(b)	Whether or not the advertising sign was actually within the 3 metre

exclusion zone” (Page 6 of the Reasons, at the middle paragraph, AR 227.)

and

“That the [appellant] knew since 5th March, 2008 that the advertising sign

was close to the exclusion zone. As from that time, the [appellant] had an obligation to identify whether or not the advertising sign was within the exclusion zone and if it was within the exclusion zone, then the [appellant] was required to implement ways to eliminate the risk. The [appellant] failed to take necessary action in that regard.

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 [appellant] did not attempt to make any contact with Ergon in that

regard.” (Page 7 of the Reasons, at points (c) and (d), AR228).[102]

[102]         Supplementary Outline of Submissions for the Respondent dated 25 May 2020.

147. The essence of this ground is that the learned magistrate erred in finding that the appellant did not make enquiries with Ergon Energy prior to the incident involving Mr Nolan.

148. The appellant in oral submissions identifies that this further ground of appeal (Ground 23) could arguably form a further particular of Ground 4, i.e. the failure to properly apply the correct standard of proof namely beyond reasonable doubt.

149. The trial before the learned magistrate proceeded with witnesses called and evidence tendered by the prosecution. The appellant, as was their right, chose neither to give nor to call evidence.

150. Trial Exhibit 9[103] contains the letter from Terry McKenzie, Operations Manager for

     [103]         AB 516-602.

     the appellant, to the investigator[104] and identifies that “powerlines were identified as a hazard on 5/03/2008”, without any reference to approaching or contacting Ergon

     [104]         AB 534.

     Energy.

151. On the basis of that exhibit, I accept it was open to the learned magistrate to infer (in the absence of any other evidence) that no other positive steps had been taken by the appellant.

152. Trial Exhibit 9[105] also contains an incident investigation report[106] provided by the appellant which states as contributing factors to the incident:

     [105]         AB 516-602.

     [106]         AB 601.

     “Paradise Outdoor Advertising not aware of the sign being within the

     three metre exclusion zone … Ergon Energy having moved the power

     lines adjacent to the sign and not advising Paradise Outdoor

     Advertising that the structure impeded on exclusion zone.”[107]

     [107]         AB 601.

153. It should be noted that the parties expressly disavowed any suggestion that Ergon Energy had moved the powerlines at any relevant time in this matter, during the course of the trial.[108]

     [108]         AB 118, T2-2 ll29-30.

154. In the light of this report, it was open to the learned magistrate to infer that there were no relevant communications prior to the incident between the appellant and Ergon Energy. The evidence of Ms Olive from Ergon Energy was that after the incident in July 2016, it was identified that the powerlines and the sign were within the three metre exclusion zone;[109] that the 15.5 metre pole was replaced with an 18.5 metre

     [109]         AB 112, T1-104 ll25-26.

     pole and conductors were no longer in the “clearance structure regulated

     clearances”;[110] and the cost was $4-4,500.[111]

     [110]         AB 112, T1-104 ll30-32.

     [111]         AB 112, T1-104 ll36-37.

155. Ms Olive confirmed that Ergon would respond straightaway if it was raised with them that persons were working close to an exclusion zone,[112] and the last time this location had been inspected for clearance and distance was October 2012.[113]

     [112]         AB 113, T1-105 ll13-16.

     [113]         AB 115, T1-107 ll34-44.

156. Again, an inference was clearly open to the learned magistrate that no enquiry had been made with Ergon prior to the incident occurring on 12 July, 2016.

157. The evidence from Stuart Ward was that the company didn’t know that the sign was

     inside three metres[114]; and that the company was completely reliant on Ergon because:

     [114]         AB 96, T1-88 ll16-17.

     “… we were always under the impression that they were always

     outside the exclusion zone, because a structure is not meant to be

     inside that exclusion zone”,[115]

     [115]         AB 91, T1-83 ll19-21.

     and he also confirmed that he had not asked Ergon to make any relevant
     measurements.[116]

     [116]         AB 89, T1-81 ll30-32.

158. Although Stuart Ward gave evidence that Ergon had “removed a couple of powerlines

     to make them in the safe zone”,[117] the parties specifically disavowed this evidence[118]

     [117]         AB 89, T1-81 ll41-42.

     [118]         AB 118, T2-2 ll29-31.

which in any event was not able to be reconciled with the evidence of Ms Olive that the pole had never been moved.[119]

[119]         AB 111, T1-103 ll39-44.

159. Clearly Mr Ward’s evidence could not be accepted on these issues and the learned

magistrate was correct in not accepting his evidence over the evidence of other witnesses where it was not independently supported by other evidence.

160. The learned magistrate did not fall into error in making any of the findings articulated in Ground 23, each of which is relevant to the issue as to whether the appellant made relevant enquiries with Ergon prior to the incident with Mr Nolan.

161. It follows this ground also fails.

     Summary

162. The appellant has failed to make out any of the grounds in this appeal.

     Orders

1. Appeal dismissed.

Costs

163. I will hear the parties on costs.

408, 421.