Poletti Corporation Pty Ltd v SafeWork NSW

[2020] NSWCCA 243

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Poletti Corporation Pty Ltd v SafeWork NSW [2020] NSWCCA 243

Hearing dates:

7 August 2020

Date of orders:

25 September 2020

Decision date:

25 September 2020

Before:

Macfarlan JA at [1];
Fullerton J at [54];
Button J at [55]

Decision:

Appeal dismissed.

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – work health and safety – statutory duty of person conducting a business or undertaking to ensure health and safety of workers so far as reasonably practicable – painter at worksite fell 6 metres through a void between building and platform attached to jumpform screen system – design, installation and operation of system subcontracted to appellant – whether primary judge considered the reasonable practicability of appellant taking particularised steps – Baiada Poultry 246 CLR 92 and Kirk v Industrial Court 239 CLR 1 considered

Legislation Cited:

Criminal Appeal Act 1912 (NSW)

Work Health and Safety Act 2011 (NSW)

Cases Cited:

Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14

Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37

Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1

Category:

Principal judgment

Parties:

Poletti Corporation Pty Limited (Appellant)
SafeWork NSW (Respondent)

Representation:

Counsel:
D Jordan SC / P Barry (Appellant)
I Taylor SC / C Magee (Respondent)

Solicitors:
DWF (Australia) (Appellant)
SafeWork NSW (Respondent)

File Number(s):

2018/57479

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2019] NSWDC 491

Date of Decision:

13 September 2019

Before:

Scotting DCJ

File Number(s):

2018/56573; 2018/57479

Judgment

1. MACFARLAN JA: This is an appeal under s 5AA(1) of the Criminal Appeal Act 1912 (NSW) against the conviction of the appellant (“Poletti”) of an offence contrary to ss 19(2) and 32 of the Work Health and Safety Act 2011 (NSW) (“the WHS Act”). Poletti was convicted by a judgment of Scotting DCJ dated 13 September 2019, following a ten day trial before his Honour in the District Court’s summary jurisdiction.

2. An appeal to this Court under s 5AA(1) is “an appeal in the strict sense and it is necessary to show error” (Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 at [96], citing a number of earlier authorities). As stated in Bulga at [96], “[i]t follows that an appeal can only succeed if the trial judge committed an error of law or applied the wrong principles in his or her fact-finding exercise”. Poletti accepted that this statement of principle applied to its appeal and did not attempt to challenge any of his Honour’s extensive findings of fact. Instead it confined its appeal to the following grounds:

1. The trial judge erred in his consideration of the ambit of Poletti’s duty under s 19(2) of the WHS Act.

2. The trial judge erred in his application of s 16 of the WHS Act.

3. For the reasons which appear below, these grounds of appeal should be rejected and Poletti’s appeal should therefore be dismissed.

The Work Health and Safety Act 2011 (NSW)

4. Section 3(1) of the WHS Act states that the Act’s main object “is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces” by eight specified means. That of most relevance to the present case is:

(a)   protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work …

5. Section 3(2) states that workers and other persons “should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable”.

6. Other provisions of the WHS Act of present relevance are as follows (these are stated as at 22 February 2016, the date of the alleged breach):

16  More than one person can have a duty

(1)   More than one person can concurrently have the same duty.

(2)   Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty.

(3)   If more than one person has a duty for the same matter, each person:

(a)   retains responsibility for the person’s duty in relation to the matter, and

(b)   must discharge the person’s duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.

17  Management of risks

A duty imposed on a person to ensure health and safety requires the person:

(a)   to eliminate risks to health and safety, so far as is reasonably practicable, and

(b)   if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.

18  What is “reasonably practicable” in ensuring health and safety

In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:

(a)   the likelihood of the hazard or the risk concerned occurring, 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 the risk, and

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

19  Primary duty of care

(1)   A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:

(a)   workers engaged, or caused to be engaged by the person, and

(b)   workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.

(2)   A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

(3)   Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable:

(a)   the provision and maintenance of a work environment without risks to health and safety, and

(b)   the provision and maintenance of safe plant and structures, and

(c)   the provision and maintenance of safe systems of work, and

(d)   the safe use, handling, and storage of plant, structures and substances, and

(e)   the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities, and

(f)   the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and

(g)   that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.

…

32  Failure to comply with health and safety duty—Category 2

A person commits a Category 2 offence if:

(a)   the person has a health and safety duty, and

(b)   the person fails to comply with that duty, and

(c)   the failure exposes an individual to a risk of death or serious injury or illness.

The factual circumstances as found by the primary judge

7. The charge against Poletti, a subcontractor at a worksite in Parramatta, alleged that it exposed Mr Peter Posa, a painter employed by another subcontractor, to death or serious injury at the worksite.

8. On 22 February 2016 Mr Posa was painting the exterior of level 27 of a multistorey building which was then in the course of construction when he fell 6 metres from a work platform and suffered serious injuries. The work platform was attached to a jumpform screen that was to provide edge protection for workers engaged in the construction of the building. Mr Posa fell through a gap formed by the architectural design of the building and the edge of the work platform (“the void”). Karimbla Construction Services Pty Ltd (“Karimbla”), the principal contractor at the site, subcontracted to Poletti the design, installation and operation of the jumpform screen system, as well as construction of the formwork for the site.

9. The subcontract provided for Poletti to prepare design drawings for the subcontracted works and to certify that they were fit for the purpose for which they were intended to be used. Under the subcontract Poletti acknowledged that it was to have “control over all aspects of the execution of the Subcontractor Works and safety issues at the Site”. By “the Formwork Scope of Works” part of the subcontract, Poletti agreed to provide the jumpform screen system and to ensure that there would be “no holes in the jumpform perimeter decking where a person can fall more than 1 floor”.

10. The jumpform screen system comprised five levels of screens erected around the perimeter of the building during its construction. The top two levels provided edge protection for the formworkers and associated trades (the formwork levels). The bottom three levels provided edge protection for the finishing trades who were required to install glazing, and to render and paint the external surfaces of the building (the finishing levels). The screens were hydraulically raised or “jumped” as a five-level unit approximately each week, on completion of a level of the building. Poletti contracted with Sureform Systems Pty Ltd (“Sureform”) to design and supply it with the components of the system. Once the design drawings were approved, the system was prefabricated and delivered to the site for assembly by Poletti.

11. The void into which Mr Posa fell existed on the top four levels of the screen system and was bordered on each level by a concrete column, the return of a balcony and the leading edge of the work platform. Hinged plywood flaps covered what would otherwise have been a void on the lowest of the five levels of the screen. Mr Posa fell from the top level of the three finishing levels of the screen (which was then at level 27 of the building) onto the flaps on the bottom level of the screen (which was then at level 25). At the time of Mr Posa’s fall, a piece of plywood had been placed over the level 27 void by the renderers as a makeshift method of catching any render that might otherwise fall through. Mr Posa fell through the void from level 27 to level 25 after he stepped onto this piece of plywood and it gave way under his weight.

12. As a matter of practice, before the screen system was “jumped” all workers were evacuated from the formwork and finishing levels except for those involved in the jumping process. Steps were taken to ensure that workers did not enter the system whilst the jump was in progress, including the placement of “danger tape”. When the jump was completed, Poletti’s representative, Mr Ferrara, would walk around and inspect the bottom level of the finishing screens to ensure that there were no gaps. He did not walk around the upper levels of the jumpform screens because he said that he saw no need to do so. After the inspection, Mr Ferrara would inform Karimbla that the jump was complete and Karimbla would then advise the finishing trades that they could resume work on the work platforms.

The particulars of breach

13. The offence with which Poletti was charged was described in the Summons which commenced the proceedings as follows:

“On 22 February 2016 at 330 Church Street, Parramatta in New South Wales, Poletti Corporation Pty Limited, being a person conducting a business or undertaking who had a health and safety duty under section 19(2) of the [WHS] Act to ensure so far as is reasonably practicable that the health and safety of persons, other than workers at work in its business or undertaking, is not put [at] risk from work carried out as part of the conduct of the defendant’s business or undertaking, failed to comply with that duty and thereby exposed Peter Posa to a risk of death or serious injury contrary to section 32 of the Act.”

14. The summons gave particulars of the factual circumstances that gave rise to Poletti’s duty and the risk to Mr Posa. Neither the existence of Poletti’s duty nor the risk to Mr Posa was in issue on the present appeal.

15. The summons then particularised Poletti’s failure to comply with its duty under s 19(2) as follows:

“[10]   The defendant failed to ensure so far as is reasonably practicable the health and safety of persons other than workers, in particular Mr Posa, was not put at risk, in that it failed to take one or more of the following reasonably practicable measures to eliminate (or alternatively minimise if not reasonably practicable to eliminate) the risk:

(a)   Conducting and documenting a risk assessment in relation to any risks associated with the existence of a void between the work platforms of the formwork screen and the outside structure of the building, due to the presence of alcoves in the design of the outside structure of the building, and consideration of the control measures that should be implemented to control the identified risks; and/or

(b)   Ensuring that all voids between the work platforms of the formwork screen and the outside structure of the building, due to the presence of alcoves in the design of the outside structure of the building, of greater than 225 mm were:

1. …

ii.   fitted with a secure, permanent structure that extended from the working deck; and/or

iii.   hinged flaps were installed between the working platform and the outside structure of the building; and/or

…

(c)   Ensuring that all persons undertaking finishing trades were not permitted to, and did not access the work platform on Level 27 of the formwork screen until the void was made safe or access to the area in the vicinity of the void was fenced off; and/or

(d)   [E]nsuring, or making arrangements for someone to ensure on behalf of the defendant, that a static line was installed on the work platform on Level 27 of the formwork screen to enable persons to use height safety personal protective equipment, such as a fall restraint/arrest equipment, while accessing the work platform of the formwork screens …”

The primary judge’s findings of breach

Particular 10(a) – risk assessment

16. The primary judge first referred to the identification in the “WorkCover NSW Formwork Code of Practice 1998” of a risk assessment process which should be carried out in the planning and preparation stage of the construction of formwork and to the Code’s statement that the control measures identified by the process “should be implemented, by first, if reasonably practicable, eliminating the hazard.” His Honour also referred to Poletti’s duty under s 19(2) of the Act as being “to take all reasonably practicable steps to ensure that other persons were not put at risk when they used the work platforms”.

17. Having referred to relevant factual matters, his Honour concluded that “[t]he conducting and documenting of a risk assessment was a reasonably practicable measure that could have been implemented by the defendant prior to 22 February 2016”. He said that a “risk assessment could have been carried out at little or no cost” to Poletti and that the cost was “not grossly disproportionate to the risk”.

18. His Honour concluded that he was satisfied beyond reasonable doubt that the “conducting and documenting of a risk assessment was a reasonably practicable measure that [Poletti] could have taken to identify the void, which presented a risk of a worker falling from one level to another”.

Particular 10(b) – elimination of voids

19. Referring to an Australian Standard contended to be relevant, the primary judge stated that Poletti’s s 19(2) duty was one to take “all reasonably practical steps”. He concluded that the “fitting of [a] permanent extension to the work platform was a way of eliminating the pleaded risk” and was satisfied beyond reasonable doubt that that was a reasonably practicable measure for Poletti to take. His Honour went on to say that the “installation of a hinged flap [over the void on the screen system level where Mr Posa was working] was a way of minimising the risk posed by the void” and that that step could have been taken “for a cost that was not grossly disproportionate to the risk”. His Honour then concluded that the installation of a hinged flap was also “a reasonably practicable measure to minimise the risk”.

Particular 10(c) – prevention of access

20. His Honour stated that “[i]t is clear from the evidence that the defendant exercised control over access to the work platforms on the finishing screens during the course of the jump process. If the defendant had decided for any reason that the work platforms were not safe to use by the finishing trades, it was open to it to prevent access to the work platforms until they were made safe”. For reasons he had already given, his Honour also considered that Poletti should have been aware of the risk posed by the void.

21. For a number of stated reasons, his Honour rejected Poletti’s argument that “it did not have control of the finishing screens after they were handed over to Karimbla”. His fifth and sixth reasons and conclusion were as follows:

“[159] Fifth, Mr Ferrara [Poletti’s supervisor] accepted that no other person on site, besides the defendant, was authorised to add components or to make alterations to the system.

[160] Finally, the fact that Karimbla had a concurrent duty to the workers using the finishing screens is irrelevant. It was conceded that the defendant also owed those workers a duty pursuant to section 19(2) of the Act. In those circumstances, section 16 of the Act provides that the defendant was required to comply with its duty to the required standard. The fact that there were discussions between Karimbla and the defendant or approval by Karimbla of the design put forward by the defendant does not demonstrate an inability of the defendant to control the configuration of the work platforms.

[161] The defendant had sufficient control over access to the system to prevent workers using the work platforms until they were made safe. It could have used the same processes to exclude workers from the screens that it used during the jump process. Alternatively, it could have simply barricaded the work platforms in the vicinity of the void while remedial works were undertaken. The defendant was only required to exclude the workers until remedial steps could be taken to make the work platforms safe. Those steps were undertaken within two days of the incident, at minimal cost. It follows, the denying of access to the work platforms for one or two days, while remedial works were undertaken, could have been effected at minimal cost to the defendant. I am satisfied that the cost of this measure was not grossly disproportionate to the risk.”

22. His Honour then stated that he was satisfied beyond reasonable doubt that “preventing access to the work platforms on Level 27 until the void could be made safe was a reasonably practicable measure to eliminate the risk”.

Particular 10(d) – arrangements for installation of a static line

23. The trial judge held that this Particular was established because it “only required the defendant to make arrangements with Karimbla to install the static lines” and installation of the lines was “clearly a measure that Karimbla was comfortable with”. Thus, his Honour held that “this was a control measure that could have been implemented with no cost to the defendant”. His Honour was satisfied that the cost of making this arrangement “was not grossly disproportionate to the risk” and concluded that he was satisfied beyond reasonable doubt that “this was a reasonably practicable measure”.

Conclusion

24. Being satisfied of the other elements of the offence, none of which are presently in contention, his Honour convicted Poletti of the offence charged.

Consideration of the appeal

Ground 1: the ambit of Poletti’s duty under s 19(2) of the WHS Act

25. I refer first to Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14 which was central to Poletti’s argument on appeal.

26. In that case, the appellant carried on the business of processing chickens. It engaged an independent contractor to catch the chickens at a supplier’s premises and another contractor to transport the crates, into which the chickens were put, to the appellant’s premises. The transport contractor provided a prime mover and driver, whilst the chicken catcher provided a forklift and a driver. When an employee of the chicken catcher was driving the forklift and loading the crates into steel modules, one of the modules fell on and killed the principal of the transport contractor. The employee was not licensed to drive the forklift.

27. The appellant was prosecuted under s 21(1) of the Occupational Health and Safety Act 2004 (Vic) which relevantly provided that “an employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health”. As a result of s 21(3) the reference to an “employee” extended to an employee of an independent contractor of the appellant.

28. Both at trial and on appeal there was an issue as to the extent to which the appellant was entitled to rely on the experience of its subcontractors as a practicable method of performing its duties under s 21. The plurality in the High Court stated that a focus on that issue however “did not directly engage with the words that are used in s 21(1)” (at [14]). In this context, their Honours said:

“[15] All elements of the statutory description of the duty were important. The words ‘so far as is reasonably practicable’ direct attention to the extent of the duty. The words ‘reasonably practicable’ indicate that the duty does not require an employer to take every possible step that could be taken. The steps that are to be taken in performance of the duty are those that are reasonably practicable for the employer to take to achieve the identified end of providing and maintaining a safe working environment. Bare demonstration that a step could have been taken and that, if taken, it might have had some effect on the safety of a working environment does not, without more, demonstrate that an employer has broken the duty imposed by s 21(1). The question remains whether the employer has so far as is reasonably practicable provided and maintained a safe working environment.” (Emphasis in original.)

29. Their Honours stated that the question of whether a step was “reasonably practicable”:

“[33] … could not be determined by reference only to Baiada having a legal right to issue instructions to its subcontractors. Showing that Baiada had the legal right to issue instructions showed only that it was possible for Baiada to take that step. It did not show that this was a step that was reasonably practicable to achieve the relevant result of providing and maintaining a safe working environment. That question required consideration not only of what steps Baiada could have taken to secure compliance but also, and critically, whether Baiada’s obligation ‘so far as is reasonably practicable’ to provide and maintain a safe working environment obliged it: (a) to give safety instructions to its (apparently skilled and experienced) subcontractors; (b) to check whether its instructions were followed; (c) to take some step to require compliance with its instructions; or (d) to do some combination of these things or even something altogether different …” (Emphasis in original.)

Their Honours later reiterated that “demonstration that some step could have been taken does not, without more, demonstrate that to fail to take that step was a breach of the obligation so far as was reasonably practicable to provide and maintain a safe working environment” (at [38]).

30. Poletti also relied heavily on the High Court decision in Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1. In that case the appellant was charged with offences in contravention of ss 15(1) and 16(1) of the Occupational Health and Safety Act 1983 (NSW). Section 15(1) required employers to ensure the health, safety and welfare at work of their employees and s 16(1) required employers to ensure that persons not in the employers’ employment were not exposed to risks to their health or safety arising from the conduct of the employers’ undertaking while they were at the employers’ places of work. It was a defence under s 53(a) for an employer to prove that it was not reasonably practicable to take the measure in question.

31. The particulars of the charges that were provided in that case were exceedingly general in form, doing “little more than [following] the words of [ss 15(1) and 16(1)]” (at [25]). The plurality emphasised that “[t]he common law [however] requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge” (at [26]).

32. Their Honours concluded as follows on the question of particularisation:

“[28] The statements of the offences as particularised do not identify what measures the Kirk company could have taken but did not take. They do not identify an act or omission which constitutes a contravention of ss 15(1) and 16(1). The first particular of the s 15(1) offence suggests that the Kirk company had some systems relating to the operation of the ATV in place, but that they were not sufficient. It does not identify the deficiency in the system or the measures which should have been taken to address it. The second particular does not identify what information, instruction or training was necessary to be given to Mr Palmer or the other employee of the Kirk company. The particulars of the s 16(1) offence say nothing about what should have been done to avoid exposing the contractors to risk to their health and safety from the use of the ATV. Needless to say, the appellants could not have known what measures they were required to prove were not reasonably practicable.”

33. Later in their judgment their Honours referred again to the need for the prosecution to particularise what measure “should have [been] taken” by the appellant (see [32]-[38]).

Particular 10(a) – risk assessment

34. Poletti submitted that “[t]he repeated reference by his Honour to a reasonably practicable measure that the appellant could have taken discloses error in the application of the principles as explained in Baiada Poultry”. It submitted that the correct question was whether the prosecutor “had proved beyond reasonable doubt that the duty imposed by s 19(2) of the WHS Act obliged the appellant to conduct and document a risk assessment” as alleged in this Particular. It submitted that, put shortly, Kirk v Industrial Court indicated that the failure to take a step was only a breach of the Act if the step was “a reasonably practicable measure that should have been taken”.

35. The trial judge’s reasoning in respect of Particular 10(a) was however not erroneous. His Honour recognised, and very clearly stated, that the ultimate question to be determined was whether this particularised step was one that was “reasonably practicable” for Poletti to take. It was permissible, and indeed virtually inevitable, that in reasoning towards that conclusion, his Honour would consider whether Poletti “could” have taken the step. Clearly, a step that it is not possible to take cannot be a “reasonably practicable” step. On the other hand, one cannot reason, and his Honour did not reason, that because a step was possible it must have been reasonably practicable. His Honour separately and distinctly referred to both the possibility and reasonable practicability of the step (see [16]-[18] above).

36. The correctness of these observations is confirmed by reference to the definition in s 18 of the WHS Act of what is “reasonably practicable” (see [6] above). That section recognises that a variety of different considerations will be relevant to a conclusion as to whether a measure is “reasonably practicable”. Most importantly for present purposes, paragraph (d) of that section expressly states that “the availability and suitability of ways to eliminate or minimise the risk” are relevant in that context. The word “availability” embraces the concept of “possibility” to which Poletti asserts the trial judge should not have had regard.

37. Likewise, the decision in Baiada Poultry does not suggest that the possibility of a step being taken is not relevant to its reasonable practicability. That case simply emphasised that the fact that “some step could have been taken does not, without more, demonstrate that to fail to take that step was a breach of the obligation so far as was reasonably practicable to provide and maintain a safe working environment” ([38] quoted at [29] above). The primary judge was clearly aware of the import of Baiada Poultry, as he expressly referred to it and the principles to be drawn from it in his judgment when summarising the relevant law (at [83]).

38. Poletti’s further submission that the primary judge neglected to consider whether Poletti’s duty “obliged [it] to conduct and document a risk assessment” is also flawed (see [34] above). The primary judge did consider this. By concluding that there was a relevant risk and that the undertaking of a risk assessment by Poletti was a reasonably practicable means of eliminating or reducing that risk, his Honour necessarily found that Poletti was obliged by the legislation to take that step (see s 17 of the WHS Act). Section 19(2) had the effect that it was Poletti’s duty to take a step in certain circumstances. His Honour found that these circumstances existed and that Poletti was therefore obliged to take the step.

39. The same reasoning applies to answer Poletti’s complaint that the primary judge did not consider whether the measure was one “that should have been taken” (see [34] above). If the circumstances referred to in s 19(2) existed, as his Honour found they did, it was Poletti’s duty to take the step – thus as a matter of law “it should have been taken”. The explanation for the repeated use of this phrase in Kirk v Industrial Court is that there was in that case no identification by the prosecution of the particular measures that should have been taken by the appellant. As they made clear, their Honours were dealing with a question of particulars. The position is quite different in the present case where the specific steps that Poletti should have taken were particularised by the prosecution. Thus, as I have indicated, both the prosecution and, because he accepted the prosecution case, his Honour, identified the steps that “should have been taken” by Poletti. In relation to this Particular, the relevant step was a risk assessment.

40. Whilst eschewing any attempt to challenge the primary judge’s factual findings (Tcpt, 7 August 2020, p 10(40), 15(36), 19(23) and 19(34)), Poletti contended that the primary judge failed to “adequately deal” with a number of identified factual matters and that they “reflected” his failure to address the correct question in relation to s 19(2), this being that identified in [34] above.

41. It is unnecessary to refer to the detail of those factual matters (and in fact they were not referred to in any detail at the appeal hearing) as whether or not they were “adequately dealt with” by his Honour does not in my view shed any light on whether his Honour misapplied s 19(2) in the manner that Poletti alleged, this (and not a challenge to any factual findings) being the relevant ground of Poletti’s appeal. His Honour’s construction of and approach to the application of s 19(2) is manifest from his reasons. As I have indicated, they do not reveal error.

Particular 10(b) – elimination of voids

42. Poletti submitted in relation to this Particular also that the trial judge erroneously asked himself the question of what Poletti “could” have done. As in relation to Particular 10(a), his Honour did not however suggest that because a measure was possible to be taken it was necessarily one that was reasonably practicable. Clearly, his Honour, as he was obliged to do, considered whether the measure was reasonably practicable (see [19] above).

43. Poletti also complained in relation to Particular 10(b) that his Honour failed to consider whether Poletti was “obliged” to take the particularised steps. It again referred to aspects of the evidence for the same purpose as it did in relation to Particular 10(a). Those submissions should be rejected for the reasons that I have given in relation to Particular 10(a).

Particular 10(c) – prevention of access

44. In this context Poletti again complained of his Honour’s consideration of what “could” have been done. For the reasons I have already given in relation to Particulars 10(a) and (b), there was no error in his Honour doing this.

Ground 2: whether error in the application of s 16 of the WHS Act

Particular 10(c) – prevention of access

45. Poletti’s submissions in this context commenced by asserting that “a central issue was whether, and to what extent, the appellant maintained influence and control over the work platforms after they were handed over to Karimbla”. It identified evidence that it said was relevant to that issue.

46. As I have indicated above, the primary judge found in relation to this issue that Poletti exercised control over access to the work platforms on the finishing screens during the course of the jump process and if it considered (when the jump was complete) that the work platforms were not safe to be used by the finishing trades, it could have prevented access to them until they were made safe (see [20] above). His Honour then, for a number of identified reasons, rejected Poletti’s argument “that it did not have control of the finishing screens after they were handed over to Karimbla” (at [154]-[160] – see [21] above).

47. Poletti submitted before this Court that his Honour’s reasons (particularly the first and final reasons) on this point did “not properly address the question posed by the terms of s 16(3)(b), which required specific consideration of the extent to which the appellant had the capacity to influence and control the access of the finishing trades to the work platform on level 27” (emphasis in original).

48. His Honour’s first reason was his conclusion that the fact that Poletti had subcontracted the design of the jumpform screen system to Sureform Systems Pty Ltd did not alleviate Poletti’s duty to ensure it was fit for purpose. This was undoubtedly correct and Poletti’s submissions do not suggest otherwise. Poletti however submitted that the point made by his Honour did not address the relevance of Karimbla’s concurrent duty. This is also correct but his Honour was nevertheless not in error to make the point about Sureform in the context in which he did. It was an obvious observation to make as part of his consideration of the extent of Poletti’s duty, or at least as a precursor to that consideration.

49. Next, Poletti submitted that the primary judge was wrong in stating in his sixth and final reason that “the fact that Karimbla had a concurrent duty to the workers using the finishing screens is irrelevant”. I do not consider however that this statement discloses error in his Honour’s understanding or application of s 16(3)(b). Read in context, his Honour was saying that the fact that Karimbla may have had (or in fact, did have) a concurrent duty did not relieve Poletti of any duty that it had. Again that was an obvious and correct observation to make as a part of his consideration of the extent of Poletti’s duty. Appropriately, his Honour then addressed the issue to which s 16(3)(b) gave rise (as to the “extent to which the person has the capacity to influence and control the matter”). In a factual finding that is not challenged in this appeal, he concluded that Poletti did have such control.

Particular 10(d) – arrangements for installation of a static line

50. Poletti complained that his Honour made “no reference at all to the application of s 16 of the WHS Act, even though a concurrent, primary, duty owed by Karimbla was clear on the evidence” and was evident from various matters Poletti described. Poletti then said that it “follows that the existence of concurrent – more direct – duties owed by both Karimbla and MJM Painting [Mr Posa’s employer] was a critical consideration in determining whether or not the appellant was also obliged to ensure the use of static lines, as alleged in particular 10(d)”.

51. His Honour was clearly aware of s 16 of the Act as he had referred to it only a few paragraphs earlier in his judgment (at [160]). There was no necessity for him to mention it again. The question for his Honour, which he determined adversely to Poletti, was whether Poletti had the power to make arrangements with Karimbla to install static lines. There was no need for his Honour to state the obvious that if Poletti had that ability, the fact that Karimbla may have had a duty to install them did not relieve Poletti of its own duty. That was obvious and had been stated by his Honour when addressing Particular 10(c).

Conclusion and Orders

52. One final matter to mention is that in the course of oral argument senior counsel for Poletti appeared to contend that his client’s conviction was defective because the summons which charged it described the offence as having occurred on 22 February 2016, whereas the completion of the last jump of the system must have occurred some days earlier. Counsel contended that this was relevant because at 22 February the finishing screens had been “handed over” from Poletti to Karimbla, and that this particularly impacted upon the “balance to be struck between the concurrent duties owed by Karimbla and MJM Painting” (Tcpt, 7 August 2020, p 8(40)). I reject this contention because any breach that occurred by not denying access to workers after completion of the jump until the jump system was safe was, on his Honour’s findings, clearly still operative on 22 February 2016 when Mr Posa’s accident occurred. In any event, his Honour rejected Poletti’s argument that it did not have control over the finishing screens after handover to Karimbla (see [46] above).

53. For the reasons I have given, neither of Poletti’s grounds of appeal should be accepted. Its appeal should therefore be dismissed.

54. FULLERTON J: I agree with Macfarlan JA.

55. BUTTON J: I agree with Macfarlan JA.

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Amendments

19 October 2020 - Pursuant to the Court's order of 19 October 2020, the words "with costs" were deleted from the orders ("Decision" field) and the reasons at [3] and [53].

Decision last updated: 19 October 2020