Case: Kennelly v Incitec Ltd [1998] FCA 1470
Outcome: discussed
Further, the applicant drew an analogy with Kennelly v Incitec Ltd [1998] FCA 1470 (' Kennelly '). In that case, Mr Kennelly was an experienced 'versatile operator' of an elevator used to transport fertilizer to the top of a tower approximately five storeys high. He was dismissed for conduct said to be such as to cause 'imminent and serious risk' to the 'safety, of a person' within the meaning of reg 30CA of the Workplace Relations Regulations 1989 (Cth). The central feature of the impugned conduct of Mr Kennelly was the removal of a 'danger tag' on the head roller of the elevator without ensuring by inspection that it was safe to commence the operation of the elevator. Spender J said (at 15-16): '...in my opinion, it remains plain that his failure to ensure that the machinery, which the danger tag indicated had been the subject of fitter repairs, was in a position properly to be started, is an act that involved the risk of very serious injury to any person working on or in the vicinity of the machine at the time of it start up. The failure to inspect the machine was a serious breach of Mr Kennelly's obligations in the operation of the systems dealing with safety in the workplace. Such visual inspection as he performed was wholly insufficient to discharge his responsibilities in the circumstances, and the fact that fortunately no person was injured or killed as a result of the operation of the elevator on that morning cannot affect the conclusion that the start up in the circumstances involved a serious risk of injury . "Risk" is defined in the Macquarie Dictionary to include "exposure to the chance of injury or loss; a hazard or dangerous chance; to expose to the chance of injury or loss, or hazard". It is clear on the evidence that Mr Kennelly exposed employees and maintenance workers to the chance of injury or loss in removing the danger tag and operating the elevator without performing the physical inspection of the head roller on the morning of 8 September 1997, and satisfying himself that it was safe to remove the danger tag and operate the elevator. There was the possibility that such persons might be working on, or in the vicinity of, the head roller, when Mr Kennelly removed the danger tag and commenced the operation of the head roller.' (emphasis added) 35 The applicant said the following can be taken from this case: (i) it is the risk that must be imminent, not the actuality of the occurrence; and (ii) the occasioning of the means by which the risk may be manifested (that is, the operation of an aircraft) affects the imminence of the risk. 36 The respondents submitted that both 'serious' and 'imminent' import the notion, in their context, of a high probability of a risk being realised, whether or not it is in fact realized. Where that high probability is missing (as in the present case, on the respondents' submission), no matter how catastrophic the potential consequences, a risk cannot be characterized as a serious and imminent risk to air safety. 37 The respondents submitted that the meaning of the phrase 'serious and imminent risk to air safety' should be determined by reference to its context in Division 3A of the Act. Given the scope of reg 269 of the CAR (see para [11] above), Division 3A should be confined to the hopefully exceptional circumstance of serious and imminent risk to air safety. 38 The respondents submit that the notion of 'serious risk' has two limbs to it. (i) The seriousness of the risk is principally, but not solely, related to the probability of the risk being realised; and (ii) In the context of s 30DB, it must also relate to the significance of the consequence: a high chance of quite minor harm occurring is not what the section is aimed at. 39 As to 'imminent', this necessarily entails not only that there is a high probability of the risk being realised, but that that risk is one that may be realised in a short time frame, that is, very soon. 40 The respondents submitted that the case of the applicant focused on the magnitude of the potential consequences, and not on the probabilities of such consequences being realised. In the present case, the respondents cast no doubt upon the potential seriousness of the consequences, but said that there was only an 'outside' (to use a word discussed in argument) or remote chance that such consequences would materialize. Therefore there was not a 'serious risk'. 41 The respondents say that if there were a strong chance of some quite minor harm, that is not what the section is concerned with. Neither, if there were a miniscule chance of major harm, is such the concern of the section. All flying involves a degree of risk. A really significant chance of significant harm occurring is what the section contemplates. 42 In CASA No 1 , Sundberg J observed at [15]: 'The power conferred by s 30DE is no different in its nature from that routinely exercised by a court of determining whether a motor vehicle is being driven dangerously, recklessly or negligently' . 56 In Kennelly a danger tag was attached to grain-elevating machinery having the capacity, if it malfunctioned, to threaten safety. The purpose of the tag was to indicate that a danger existed if the machinery were started before a competent person had indicated that it was safe to do so. A supervising employee removed the tag without ensuring by inspection that it was safe to put the equipment into operation. Thus, in the face of a clear indication that a dangerous situation might exist, a person responsible for making an inspection to see whether that dangerous situation did exist, failed to do so. His Honour's finding that this was conduct that caused 'imminent, and serious, risk' to safety commands respect. 57 That case is different from the present. In Kennelly there was no doubt that a dangerous situation existed. The worker did not take a readily available step to confirm or dispel the warning offered by the danger tag. Here, the question is whether there are reasonable grounds to believe that such elevation of the risks in taking-off as occurred was in the actual circumstances prevailing, 'serious' and whether, the steps taken to recognise and avert any such risks were sufficient to render the risks, in their context, less than 'serious'. As will appear, in my view, reasonable grounds do not exist to believe that the elevation of the risks given the steps taken by the experienced pilots in the interests of their own and their passengers' safety constituted a serious risk to air safety. 58 The respondents submitted: 'Realisation of a risk which was no more than an "outside chance" would not necessarily be caught by section 30DB. For example: a) consider a landing aircraft which collided with an aircraft which was positioned adjacent to the runway at a holding point but which unexpectedly moved forward on to the runway into the path of the landing aircraft. Notwithstanding the seriousness (in the sense of significance) of the consequences, this circumstance would not necessarily be conduct that constitutes, contributes to or results in a serious and imminent risk to air safety, in respect of the landing aircraft. The relevant conduct is proceeding with the landing with an aircraft adjacent to the runway (a common occurrence). There is plainly a possibility that the parked aircraft will infringe the runway. But despite that remote possibility occurring, landing an aircraft in that circumstances does not constitute, contribute to or result in encountering a serious and imminent risk to air safety. It entails encountering a remote possibility, which against the odds, materialised. b) consider a single engine aircraft flying over the sea, beyond gliding distance of land. Despite the reliability of aircraft engines, they can and do fail. To undertake such a flight with a normally functioning well maintained engine, is acceptable and lawful conduct not caught by section 30DB, because to undertake such a flight is to encounter merely a remote risk to air safety, not a serious and imminent risk to air safety. This is so whether or not the engine actually fails over the water and the aircraft is forced to ditch with serious consequences.' (original emphasis) 59 While there may be less stark examples than those given of flying which constitutes a serious and imminent risk to air safety, I agree with the general thrust of the distinctions drawn.