Jabatan Kesihatan Dan Keselamatan Pekerjaan
[2013] MLRHU 1096 v. Sri Kamusan Sdn Bhd pg 1
JABATAN KESIHATAN DAN KESELAMATAN PEKERJAAN
v.
SRI KAMUSAN SDN BHD
High Court Sabah & Sarawak, Sandakan
Douglas Cristo Primus Sikayun JC
[Case No: SDK-42 AC-1/4-2013]
22 November 2013
Case(s) referred to:
DPP v. PJ Carey (Contractors) Limited [2011] IECCA 63 (refd)
Her Majesty The Queen v. Jamel Metals Inc [1999] CanLII 12390 SK PC (refd)
Inspector John Sibilant v. Royal Automobile Club of Australia Incorporating
Imperial Services Club Ltd [2008] NSWIR Comm 87 (refd)
R v. Gateway Foodmakers Ltd [1996] EWCA Crim 1786 (refd)
State Rail Authority of New South Wales v. Dawson (1990) 37 IR 110 (refd)
Tesco Supermarkets Ltd v. Nattrass [1972] AC 153 (refd)
Utumapu (Health and Safety Inspector) v. W Crighton & Son 280 Ltd (NZDC
Palmerston North) [2000] NZHSE 14 (refd)
WorkCover Authority of New South Wales (Inspector 276 Woodington) v.
Australand Holding Limited and Sassall Glass & Joinery Pty Limited [2008]
NSWIR Comm 153 (refd)
Legislation referred to:
Australia Occupational Health And safety Act 2000, s 8(1)
Code Of Practice On Safety And Health Agriculture, s 15
Occupational Safety And Health Act 1994, ss 2(1), 3(1), 15(1), 18, 48, 55, 60
United Kingdom Health And Safety At Work Act 1974, s 2(1)
Counsel:
For the appellant: Natrah Mazman; DPP
For the respondent: Francis Wong; M/s William Liaw, Chan & Co
[Appeal dismissed.]
JUDGMENT
Douglas Cristo Primus Sikayun JC:
[1] This is an appeal by the Appellant against the order of the learned Sessions
Court Judge (SCJ) in discharging and acquitting the Respondent at the end of
the defence case for an offence under s 15(1) of the Occupational Safety and
Health Act 1994 (OSHA).
[2] The brief facts of the case is that on the 6th October 2010, the Department
of Occupational Safety and Health (DOSH) received a complaint about an
incident occurred at Sri Kamusan on the 5th October 2010, about 5 pm. On
Jabatan Kesihatan Dan Keselamatan Pekerjaan
pg 2 v. Sri Kamusan Sdn Bhd [2013] MLRHU 1096
the 7th October 2010, two officers from DOSH went to Sri Kamusan Estate to
conduct accident investigation. From their initial investigation, it was found
out that:-
(i) The accident involved one victim, that was the late Junaidi bin
Maswan (the deceased);
(ii) Before the accident, the deceased was sitting on the top of the
tractor's wheel cover, and fell off from the tractor when the tractor
passed through a sharp bend;
(iii) The deceased worked for Sri Kamusan Sdn Bhd (Respondent);
(iv) The Respondent had failed to supervise the use of tractor as a
means of transportation of workers to the workplace, causing the
deceased to ride on the said tractor and consequently fell off the tractor
when the tractor passed through a sharp bend. The deceased was
pronounced dead on 6.45 pm on 5th October 2010.
[3] The Respondent was then charge in Court and the amended charge read as
follows:-
"Bahawa kamu, pada 05 Oktober 2010, lebih kurang jam 5:00 petang
di Phase 3, Sri Kamusan Estate, Locked Bag 34, 90009 Sandakan,
Sabah sebagai majikan, telah gagal untuk menjalankan tanggungjawab
kamu sebagai yang dikehendaki dibawah s 15(1), Akta Keselamatan
dan Kesihatan Pekerjaan 1994 iaitu gagal untuk memastikan setakat
yang praktik, keselamatan, kesihatan dan kebajikan semasa bekerja
semua pekerja kamu, semasa bekerja, iaitu traktor dan trailer yang
disediakan sebagai pengangkutan pekerja khususnya Junaidi Bin
Maswan (No paspot: AN 854348) tidak selamat untuk digunakanke
tempat kerja. Dengan itu, kamu telah lakukan kesalahan dibahawa s
15(1) Akta Keselamatan dan Kesihatan Pekerjaan 1994 dan jika
disabitkan kesalahan boleh dihukum dibawah s 18 Akta yang sama."
[4]Section 15(1) of OSHA reads:-
"It shall be the duty of every employer and every self-employed person
to ensure so far as is practicable, the safety, health and welfare at work
of all his employees and that duty extends to:
a) The provision and maintenance of plant and systems of
work that are, so far as is practicable, safe and without risks to
health;
b) The making of arrangement for ensuring, so far as is
practicable, safety and absence of risks to health in connection
with the use of operation, handling, storage and transport of
plant and substances;
Jabatan Kesihatan Dan Keselamatan Pekerjaan
[2013] MLRHU 1096 v. Sri Kamusan Sdn Bhd pg 3
c) The provision of such information, instruction, training and
supervision as is necessary to ensure, so far as is practicable,
the safety and health at work of his employees;
d) So far as is practicable, as regards any place of work under
the control of employer or self-employed person, the
maintenance of it in a condition that is safe and without risks
to health and the provision and maintenance of the means of
access to and egress from it that are safe and without such
risks;
e) The provision and maintenance of a working environment
for his employees that is, so far as is practicable, safe, without
risks to health, and adequate as regards facilities for their
welfare at work.
[5] Although the Appellant had raised 9 grounds of appeal in its Petition of
Appeal, the learned Deputy Public Prosecutor (DPP) in her submission which
I agree that the main issues in this appeal are that:-
i) Whether the Appellant had proven beyond reasonable doubt against
the Respondent; and
ii) Whether the Respondent's defence had rebutted the duty imposed
under s 60 of OSHA on the balance of probabilities.
[6] Currently there are no reported cases in Malaysia pertaining to offences
under s 15(1) of OSHA. Nevertheless I will rely on relevant reported cases
under s 2(1) of the Health and Safety at Work Act 1974 of the United
Kingdom and s 8(1) of the Australia Occupational Health and safety Act
which are in pari materia with our s 15(1) OSHA. I will also refer to other
Jurisdiction such as New Zealand, Canada, Hong Kong and others. Although
decisions in other jurisdiction are merely persuasive authority but it was
followed by most if not all member states of the International Labour
Organization which concerned the safety, health and welfare of employees.
[7] First, let me laid down the ingredients of the charge that has to be proved
by the prosecution. Based on my reading of the charge, I am of the view that
the elements of the offence under s 15(1) OSHA is as follows: -
a) The Respondent was an employer of the deceased at the material
time;
b) That the deceased being an employee of the Respondent was
exposed to risk to the health and safety;
c) That the deceased being an employee of the Respondent was at
work at that material time; and
Jabatan Kesihatan Dan Keselamatan Pekerjaan
pg 4 v. Sri Kamusan Sdn Bhd [2013] MLRHU 1096
d) There is a causal nexus between the Respondent's breach and the
risk to the deceased's safety.
[8] In arriving at the above elements of the offence, I placed reliance to the
Australian case of Inspector John Sibilant v. Royal Automobile Club of Australia
Incorporating Imperial Services Club Ltd [2008]NSWIRComm 87 (28 April
2008) where the elements of offence under s 8(1) of the Occupational Health
and safety Act 2000 which is in pari materia with our s 15 OSHA has been laid
down.
[9] Now let me deal with the first issue. According to the charge against the
Respondent, it was stated that on 5th October 2010 at 5 pm the Respondent
had failed in its duty to ensure the safety, health and welfare of its workers
while at work. Hence, the Prosecution must prove that the deceased was at
work at the material time.
[10]Section 15(1) OSHA stated that the duty of the employer is to ensure
safety, health and welfare at work for his employees. This would mean that the
duty of an employer is to ensure the safety, health and welfare of its workers
while they are at work and not when they are not working.
[11] Pursuant to the employment contract that was tendered as Exhibit P9, it is
well written at clause 4 that working hours commence from 6 am to 2 pm
only. DW1 (mandur / supervisor) and DW2 (Assistant Estate Manager)
confirmed that the working hours was from 6 am to 2 pm and thereafter the
workers are on their own. DW2 further testified that the company has a
standing procedure whereby for all overtime work, there must be a form to be
filled up by the employee and must be approved by the company. In this case,
there was no such requisition for overtime work.
[12] I hold that the learned DPP's contention in her submission that the
workers were working because of the fruits needed to be send to the mill
within 24 hours is merely assumption as there was no evidence on this before
the Court. The deceased and other workers had gone on a frolic on his own
and without the knowledge of the Respondent as they were all not at work.
[13] Since the deceased was not working at the material time and there was no
work carried out, I hold that what the deceased did that evening was not an
activity that can be described as part of the employer's undertaking as they are
free to do whatever they like after the working hours. As such, the Respondent
cannot be held liable for acts that had happened after the workers or the
deceased work hours. The learned SCJ was correct in citing the UK Court of
Appeal case of R vs. Gateway Foodmakers Ltd [1996] EWCA Crim 1786,
where the Court of Appeal held that the activity in question must be that can
be described as part ofthe employer's undertaking. The Court of Appeal in this
case held as follows:-
" The duty under s 3 is imposed on the employer himself by reference
to a certain kind of activity, namely, the conduct by the employer of
Jabatan Kesihatan Dan Keselamatan Pekerjaan
[2013] MLRHU 1096 v. Sri Kamusan Sdn Bhd pg 5
his undertaking" (1547B). The question, therefore, (the statutory
defence apart) was simply "whether the activity in question can be
described as part of the employer's undertaking"(1547H).
There is no reference in s 2(1) to the conduct of the undertaking,
which is the basis for liability under s 3(1), and so it is manifest that
the content of the duty under s 2(1) is different from that under s 3(1).
But in our judgment it is the same kind of duty: the company, as
employer, is liable when thenecessary conditions for liability are
fulfilled. Having regard to the statutory qualification ("so far as is
reasonably practicable"), the interpretation of s 2(1) in this way seems
to us to be entirely consistent with the principle identified by Lord
Reid in Tesco Supermarkets Ltd vs. Nattrass [1972] AC 153. Parliament
can be assumed to have balanced the need for regulation, achieved by
making the employer liable, against the injustice of convicting a
person who is blameless, hence the statutory defence (see page 169).
[14] Premised on the above authority, I hold that the learned SCJ was correct
in finding that at the material time stated in the charge the prosecution had
failed to prove beyond reasonable doubt the victim was at work.
[15] Now that I have found that the deceased was not at work at the material
time, this will means that the tractor and the trailer was never used by the
deceased as a mode of transportation to his place of work.At the time of the
accident at 5 pm on that day, the deceased were riding on the tractor and not
the trailer. Bear in mind that all witnesses both from the prosecution and the
defence had given evidence that the Respondent prohibit any worker riding on
the tractor except the driver.
[16] Be it as it may it is necessary to determine whether the tractor and the
trailer was safe and reasonable to be used in the Plantation. The Appellant
submits that the tractor and trailer provided by the Respondent as
transportation for the employees to the workplace are unsafe to be used and
that the trailer which was pulled by the tractor at Sri Kamusan Estate was used
to transport oil palm fruit bunch and was also used to transport workers and
was the main transport available at Sri Kamusan estate.
[17] The trailer that was used to transport oil palm fruit bunch and also used
for the workers' transportation was not provided with proper seating or canopy
as the workers have to sit on the floor of the trailer and this is not in
accordance with s 15 of the Code of Practice on Safety and Health Agriculture
issued by the International Labour Organisation (COPSHA-ILO).
[18] Section 15 of COPSHA-ILO also provides that for trailers, to allow
passengers to ride on it, it must be equipped with a braking system side panels,
secured seating and canopies.
[19] The prosecution also relied on the evidence of the PW6 (officer from the
Road Transport Department) and PW7 (officer from Forensic Engineering
Division of DOSH of Putrajaya to support that tractor and trailer are not safe
Jabatan Kesihatan Dan Keselamatan Pekerjaan
pg 6 v. Sri Kamusan Sdn Bhd [2013] MLRHU 1096
and unsuitable to transport workers in the plantation. However, based on the
evidence before me, PW6 and PW7 are not expert witnesses and their
evidence is of no assistance to this case. PW6 admitted that he is not
specialised in the field of agriculture and he was not in the position to give
opinion as to the use of equipments in plantation. PW7 also admitted that he
is not an expert in so far as to the use of the tractor and trailer in agriculture to
qualify as an expert in that field. PW7 said that the trailer should be modified
with seating and cover and modified for such use. However, he also said that
modified or not, it is still unstable when the trailer is added to the tractor.
[20] Regardless of the evidence of PW6 and PW7, the facts remained that
DOSH did not issue any notices under s 48 OSHA to prohibit the use of
trailers after the accident happened. Neither did DOSH issue any notices to
demand that the trailer be modified to suit for such purposes. Even after the
accident, DOSH did not issue any notice directing the Respondent to install
roof, brakes, seat etc on the trailer for the purpose to carry the workers. Being a
statutory body, DOSH has the statutory duty under s 48 of OSHA to issue
such notices if DOSH is of the opinion that the trailer is not safe to DOSH
satisfaction. By not issuing such important notices, such inference can be
gathered that the trailer is safe and does not risk the lives of the employees
whilst using the trailer.
[21] I must say that DOSH is under a statutory duty to educate the employers
and to ensure a safe workplace. DOSH cannot be said not to be aware of
trailers being used in the plantations in Sabah to ferry workers as well as to be
used to transport the crops. In fact, the prosecution through PW6 and PW7
testified that they were aware of this. [see pages 111 and 124 of the Record of
Appeal]. In any event, on the evidence before me, the trailer used by the
Respondent to ferry the workers to workplace was designed with a guard and
all workers must sit on the floor of the trailer and this is in fact is allowed by
COPSHA-ILO. I also take judicial notice that the International Labour
Organization as well as the Safety and Health executive of UK guidelines for
agriculture allows tractors and trailers to be used to ferry workers but must
minimize the risk.
[22] In the final analysis, in view that DOSH did not prohibit or ban the use of
the trailer and tractor as a mode of transporting workers before,after the
accident and even as of the time of the trial in the Court below and during the
appeal before me, I hold that the prosecution had failed to prove beyond
reasonable doubt the tractor and the trailer was not safe to be used to ferry
workers in the plantation.
[23] Next, I move on to the second issue that is whether the Respondent had
rebutted the duty imposed under s 60 of OSHA on the balance of probabilities.
At this juncture is it important to determine the issue of burden of proof.
Learned DPP submitted that the burden of proof falls on the Respondent
under s 60 OSHA once the prosecution proved beyond reasonable doubt
certain acts or omission to provide a prima facie case. The Respondent
disagreed and drawn my attention to the cases of: -
Jabatan Kesihatan Dan Keselamatan Pekerjaan
[2013] MLRHU 1096 v. Sri Kamusan Sdn Bhd pg 7
a) Work Cover Authority of New South Wales (Inspector 276
Woodington) v. Australand Holding Limited and Sassall Glass & Joinery
Pty Limited [2008] NSWIRComm 153,
b) Utumapu (Health and Safety Inspector) v. W Crighton & Son 280 Ltd
(NZDC Palmerston North) [2000] NZHSE 14; and
c) DPP v. PJ Carey (Contractors) Limited [2011] IECCA 63
all of which were cases which dealt with among others the question of burden
of proof. In the case of Inspector Woodington cited above, the Court held
that:-
"As in all criminal matters, the nature of the duty imposed does not
relieve the prosecution of the necessity for it to prove the employer's
failure beyond reasonable doubt: See State Rail Authority of New South
Wales v. Dawson (1990) 37IR 110 at 120-121 where the Full Bench
stated:
Although s 15(1) creates an absolute liability on the employer,
it is still nevertheless necessary for the informant to prove,
according to the criminal standard of beyond reasonable doubt
that the employer failed to meet the obligation cast on him by
the section".
[24] Hence, premised on the above cases, I am in agreement with the learned
counsel for the Respondent that the burden of proof is still on the prosecution
to prove beyond reasonable doubt and never shift to the Respondent.
[25] Moving on, s 60 of OSHA provides that:-
"In any proceedings for an offence under this Act or any regulation
made thereunder consisting of a failure to comply with a duty or
requirement to do something means to do something, it shall be for the
accused to prove that it was not practicable to do more than was in
fact done to satisfy the duty or requirement, or that there was no better
practicable means than was in fact used to satisfy the duty or
requirement".
[26] As to what "practicable" means, s 3 OSHA provides as follows:-
"Practicable" means practicable having regard to:-
(a) the severity of the hazard or risk in question
(b) the state of knowledge about the hazard or risk and any
way of removing or mitigating the hazard or risk;
(c) the availability and suitability of ways to remove or
Jabatan Kesihatan Dan Keselamatan Pekerjaan
pg 8 v. Sri Kamusan Sdn Bhd [2013] MLRHU 1096
mitigate the hazard or risk; and
(d) the costs of removing or mitigating the hazard or risk.
[27] In defending itself, the Respondent relied on s 55 of OSHA where it
reads:-
"It shall be a defence in any proceeding against a person for an offence
under this Act or any regulation made thereunder to satisfy to the
Court that the offence was committed without his consent or
connivance and that he had exercised all such due diligence to prevent
the commission of the offence as he ought to haveexercised, having
regard to the nature of his functions in that capacity and to all the
circumstances".
[28] The case of Her Majesty The Queen v. Jamel Metals Inc [1999] CanLII
12390 SK PC, the Court must consider whether the accused had exercised due
diligence or taken reasonable precaution to prevent the breached.
[29] The evidence of PW1, PW2, PW5, PW7, DW1 and DW2 shows that the
Respondent had muster call every morning where all workers were instructed
on the safety aspect before they start work and to prioritise the aspect of safety
during working hours. There are safety regulations of the Respondent which
the workers are briefed. Safety sign boards were put around the plantations.
All workers were instructed to sit on the floor of the trailed when being ferried
to work. In fact, disciplinary actions were taken against workers who breached
the rules and regulations on safety. PW2 also testified that the Respondent had
done all that it can do to prevent such accident [see Q59 at page 57 Record of
Appeal]. The prosecution own witness PW5, concluded that based on his
investigation, the negligence of the deceased workers himself resulting in his
death.
[30] By virtue of the evidence adduced by the Defence, the learned SCJ was
right in holding that the Respondent had indeed taken all the reasonable steps
and due diligence to ensure the safety of each worker at the plantation and any
hazardous foreseeable danger has been taken precaution by the Respondent by
putting up warning signage at the vicinity.
[31] With these, I conclude that the Respondent has rebutted the duty imposed
as stated under s 60 of OSHA.
[32] In the light of the foregoing, I affirm the findings of law and fact of the
Court below and dismiss this appeal.
