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SafeWork NSW v Astute Earth Works Pty Ltd

SafeWork NSW v Astute Earth Works Pty Ltd

Case [2023] NSWDC 131 1 May 2023

Duty of Care

Risk of Death or Serious Injury

Injury to Workers

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Astute Earth Works Pty Ltd [2023] NSWDC 131
Hearing dates: 13 – 17; 20 – 22; 24 and 27 February 2023
Date of orders: 01 May 2023
Decision date: 01 May 2023
Jurisdiction: Criminal
Before: Scotting DCJ
Decision:
1 The prosecution has not proven all of the elements of the offences beyond reasonable doubt.
2 I will hear from the parties before making final orders.

Catchwords:
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – injury to workers

Legislation Cited:
Evidence Act 1995
Occupational Health and Safety Act 2000
Work Health and Safety Act 2011
Work Health and Safety Regulation 2013

Cases Cited:
Aubrey v R (2017) 260 CLR 305
Baiada Poultry Pty Ltd v R (2012) 246 CLR 92
Bulga Underground Operations v Nash [2016] NSWCCA 37
Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467
Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209
Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50
Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676
Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313
Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267
Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
R v Board of Trustees of the Science Museum [1993] 1 WLR 1171
R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321
R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332
R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332
Royall v The Queen (1991) 172 CLR 378
Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316
Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304
Smith v Broken Hill Pty Ltd (1957) 97 CLR 337
Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015
Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94
WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453
WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166
WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80

Category: Sentence
Parties: SafeWork NSW (Crown)
Astute Earth Works (Defendant)
Representation:
Counsel:
M Cahill (Crown)
M Sahade (Defendant)
Solicitors:
Legal, Department of Customer Service (Crown)
Paramount Law Group (Defendant)

File Number(s): 2021/234801
2021/234811
Publication restriction: None

Judgment

Introduction

Astute Earth Works Pty Ltd (Astute or the defendant) has pleaded not guilty to the following charges, the first two of which are brought in the alternative:

an offence contrary to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SafeWork NSW v Astute Earth Works Pty Ltd

Details

AGLC: SafeWork NSW v Astute Earth Works Pty Ltd [2023] NSWDC 131
Case: [2023] NSWDC 131
Decision Date: 01 May 2023

CaseChat Overview and Summary

SafeWork NSW prosecuted Astute Earth Works Pty Ltd for breaches of work health and safety laws under the Work Health and Safety Act 2011. The dispute arose from incidents at a construction site where workers were injured. The case was heard in the Local Court of New South Wales.

The legal issues for the court to decide included whether the company breached its duty of care under the work health and safety laws. Specifically, the court needed to determine if Astute Earth Works failed to ensure the health and safety of workers by not managing the risks of injury properly. This involved assessing whether the company took reasonable steps to identify and mitigate the risks of workers being exposed to dangerous machinery and materials.

The court found that while there were breaches of work health and safety regulations, the prosecution had not proven beyond reasonable doubt that these breaches led to the workers' injuries. The evidence presented was not sufficient to establish the direct causal link between the breaches and the injuries. Therefore, the court acquitted the company of the charges, as the prosecution failed to meet its burden of proof. The court will hear further submissions from the parties before making any final orders.

Orders

Orders of the court

1 The prosecution has not proven all of the elements of the offences beyond reasonable doubt.

2 I will hear from the parties before making final orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

SafeWork NSW v Astute Earth Works Pty Ltd [2023] NSWDC 131

Most Recent Citation

Prime Marble & Granite Pty Ltd v Safework NSW [2024] NSWCCA 105

Cases Citing This Decision

SafeWork NSW v Pendle Ham and Bacon Pty Ltd [2025] NSWDC 63
Citation 1

…s [2017] 1 WLR 505 Royall v The Queen (1991) 172 CLR 378 SafeWork NSW v Astute Earthworks Pty Ltd [2023] NSWDC 131 Safework NSW v Scharfe [2021] NSWDC 260 SafeWork NSW v Tamex Transport Services Pty Ltd [2016] NSWDC 295 Saunders Civilbuild Pty Ltd v SafeWork NSW [2023] NSWCCA 261 Seltsam v McNeill [2006] NSWCA 158…
Prime Marble & Granite Pty Ltd v Safework NSW [2024] NSWCCA 105
Citation 2 (Para 24)

…ould, for example, be impermissible when prosecuting a defendant for an assault or murder: see, for example, Safework NSW v Astute Earthworks Pty Ltd [2023] NSWDC 131 (three workers ); McColm v Hamilton Blasting Services Pty Ltd ; McColm v Hamilton [2021] NSWDC 688 (11 workers relating to a single incident which oc…

See all citing cases →

Cases Cited

Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50
Citation 1 (Para 216)

…Industrial Construction Group Pty Ltd (2006) 14 VR 321 at [49] and Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50 at [51].…
Aubrey v The Queen [2017] HCA 18
Citation 2 (Para 252)

…l being exposed to a risk of death or serious injury. The degree of the possibility required depends on the social utility of the conduct: Aubrey v R (2017) 260 CLR 305 at [49].…
DPP v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55
Citation 3 (Para 200)

…o error: Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 and Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 at [3]-[6].…
Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
Citation 4 (Para 222)

…ission of the defendant was a significant or substantial cause of the worker being exposed to the risk of injury: Bulga Underground Operations v Nash [2016] NSWCCA 37 at [127].…
Baiada Poultry Pty Ltd v The Queen [2012] HCA 14
Citation 5 (Para 211)

…have had some effect on the safety of a working environment does not, without more, demonstrate a breach of the duty: Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 at [15], [33] and [38] (French CJ, Gummow, Hayne and Crennan JJ).…
Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316
Citation 6 (Para 224)

…Regard must be had to the scope and objects of the Act: Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 at [79]-[102]. The relevant question is not whether the particularised failures of the defendant were the cause of the injury to the worker, but rather whether there w…
Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
Citation 7 (Para 206)

…not be assessed by reference to the actual knowledge of a specific defendant in particular circumstances: Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33].…
Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252
Citation 8 (Para 199)

…necessarily actual danger: R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 and Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94 at [67].…
Kirk v Industrial Court of New South Wales [2010] HCA 1
Citation 9 (Para 201)

…exists. The existence of the risk constitutes a breach of s 19 of the Act. It is not necessary that there is an accident or that a person is injured: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [13]. The relevant risk for the commission of the ss 31 and 32 offences is the risk of death or serious injury.…
Kirk v Industrial Relations Commission of New South Wales [2008] NSWCA 156
Citation 10 (Para 201)

…es a breach of s 19 of the Act. It is not necessary that there is an accident or that a person is injured: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [13]. The relevant risk for the commission of the ss 31 and 32 offences is the risk of death or serious injury.…
R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181
Citation 11 (Para 216)

…to foolish disregard of personal safety and deliberate non-compliance with safe systems of work: R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321 at [49] and Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50 at [51].…
Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6
Citation 12 (Para 207)

…racticable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 at [37] (Gleeson CJ, Gummow and Hayne JJ).…
Royall v The Queen [1991] HCA 27
Citation 13 (Para 223)

…mon sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen (1991) 172 CLR 378.…
Smith v Broken Hill Pty Ltd [1957] HCA 34
Citation 14 (Para 214)

…rker’s negligence in carrying out his or her duties then this is a factor which the duty holder must take into account: Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by workers but duty holders must conduct operations on the basis that suc…
Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72
Citation 15 (Para 214)

…er must have regard not only for the ideal worker but also for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320 (Dixon CJ). If there is a foreseeable risk of injury arising from a worker’s negligence in carrying out his or her duties then this is a facto…

Legislation Cited

Evidence Act 1995 (Cth)
1 mention (from Para 139)
Occupational Health and Safety Act 2000 (NSW)
1 mention (from Para 208)
Work Health and Safety Act 2011 (ACT)
1 mention (from Para 1)

Medium Neutral Citation:	SafeWork NSW v Astute Earth Works Pty Ltd [2023] NSWDC 131
Hearing dates:	13 – 17; 20 – 22; 24 and 27 February 2023
Date of orders:	01 May 2023
Decision date:	01 May 2023
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	1 The prosecution has not proven all of the elements of the offences beyond reasonable doubt. 2 I will hear from the parties before making final orders.
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – injury to workers
Legislation Cited:	Evidence Act 1995 Occupational Health and Safety Act 2000 Work Health and Safety Act 2011 Work Health and Safety Regulation 2013
Cases Cited:	Aubrey v R (2017) 260 CLR 305 Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 Bulga Underground Operations v Nash [2016] NSWCCA 37 Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209 Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50 Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321 R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332 R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332 Royall v The Queen (1991) 172 CLR 378 Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94 WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453 WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80
Category:	Sentence
Parties:	SafeWork NSW (Crown) Astute Earth Works (Defendant)
Representation:	Counsel: M Cahill (Crown) M Sahade (Defendant) Solicitors: Legal, Department of Customer Service (Crown) Paramount Law Group (Defendant)
File Number(s):	2021/234801 2021/234811
Publication restriction:	None