SafeWork NSW v Autocare Services Pty Ltd - [2022] NSWDC 547

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Autocare Services Pty Ltd [2022] NSWDC 547
Hearing dates: 8 November 2022
Date of orders: 14 November 2022
Decision date: 14 November 2022
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   Note that the defendant accepts that it committed a breach of duty by failing to take the measures particularised in par 14(a) and 14(b)(v) of the Amended Summons.
(2)   The prosecutor has failed to establish that the measures particularised in par 14(b)(ii), (iii) and (iv) of the Amended Summons were reasonably practicable.
(3)   Confirm that the matter has been adjourned to 13 December 2022 for finalisation of the sentence hearing.

Catchwords:
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury
SENTENCING – plea of guilty – plea to elements of offence – disputed facts – reasonably practicable ways to eliminate or minimise the risk

Legislation Cited:
Work Health and Safety Act 2011 (NSW), ss 18, 19, 32
Work Health and Safety Regulation 2017 (NSW), cll 34, 35, 39

Cases Cited:
Baiada Poultry Pty Limited v The Queen [2012] HCA 13; (2012) 246 CLR 92
Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
Poletti Corporation Pty Limited v SafeWork NSW [2020] NSWCCA 243
Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304

Category: Procedural rulings
Parties: SafeWork NSW (Prosecutor)
Autocare Services Pty Ltd (Defendant)
Representation:
Counsel:
M Scott (Prosecutor)
G Livermore KC with B Anniwell
Solicitors:
Department of Customer Services (Prosecutor)
Seyfarth Shaw Australia (Defendant)

File Number(s): 2021/117835

Judgment

Introduction

On 15 May 2019 Mr Trent McIntosh was performing running repairs to the air lines of a vehicle transportation trailer. Mr McIntosh was employed by the defendant Autocare Services Pty Ltd (Autocare) as a heavy vehicle driver. Mr McIntosh died while performing that work, when a deck of the trailer descended and crushed him.
By a Summons filed on 27 April 2021 the prosecutor SafeWork NSW (SafeWork) alleged that Autocare, being a person conducting a business or undertaking who had a health and safety duty under s 19(1) of the Work Health and Safety Act NSW (the Act) to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the business or undertaking, failed to comply with that duty and the failure to comply with that duty exposed workers, in particular Mr McIntosh, to a risk of death or serious injury contrary to s 32 of the Act.
On 29 April 2022 Autocare entered a plea of guilty to the elements of the offence pleaded in the Summons filed on 27 April 2021. The court noted that Autocare “disputes everything pleaded in paragraph 14(b) in Annexure A to the Summons”. The matter was set down for a disputed facts hearing before me on 8, 9 and 10 November 2022. Directions were made for the parties to identify the…

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.

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Details

Case: [2022] NSWDC 547
Decision Date: 14 November 2022

CaseChat Overview and Summary

SafeWork NSW prosecuted Autocare Services Pty Ltd for breaches of work health and safety laws under the Work Health and Safety Act 2011. The case was heard in the Downing Centre Local Court. The defendant pleaded guilty to certain aspects of the offence, but disputed specific facts regarding the measures that were reasonably practicable to eliminate or minimise the risk of death or serious injury.

The primary legal issue before the court was whether the measures identified in the amended summons were reasonably practicable to eliminate or minimise the risk of death or serious injury. The court had to determine whether SafeWork NSW had established that Autocare Services Pty Ltd failed to take these measures, and whether these measures were indeed reasonably practicable.

The court found that Autocare Services Pty Ltd accepted that it breached its duty by not taking the measures identified in paragraphs 14(a) and 14(b)(v) of the Amended Summons. However, the court held that SafeWork NSW had not proven that the measures identified in paragraphs 14(b)(ii), (iii), and (iv) of the Amended Summons were reasonably practicable. Consequently, these aspects of the offence were not upheld by the court. The matter was adjourned to 13 December 2022 for the finalisation of the sentencing hearing.

Orders

Orders of the court

(1) Note that the defendant accepts that it committed a breach of duty by failing to take the measures particularised in par 14(a) and 14(b)(v) of the Amended Summons.

(2) The prosecutor has failed to establish that the measures particularised in par 14(b)(ii), (iii) and (iv) of the Amended Summons were reasonably practicable.

(3) Confirm that the matter has been adjourned to 13 December 2022 for finalisation of the sentence hearing.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	SafeWork NSW v Autocare Services Pty Ltd [2022] NSWDC 547
Hearing dates:	8 November 2022
Date of orders:	14 November 2022
Decision date:	14 November 2022
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) Note that the defendant accepts that it committed a breach of duty by failing to take the measures particularised in par 14(a) and 14(b)(v) of the Amended Summons. (2) The prosecutor has failed to establish that the measures particularised in par 14(b)(ii), (iii) and (iv) of the Amended Summons were reasonably practicable. (3) Confirm that the matter has been adjourned to 13 December 2022 for finalisation of the sentence hearing.
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCING – plea of guilty – plea to elements of offence – disputed facts – reasonably practicable ways to eliminate or minimise the risk
Legislation Cited:	Work Health and Safety Act 2011 (NSW), ss 18, 19, 32 Work Health and Safety Regulation 2017 (NSW), cll 34, 35, 39
Cases Cited:	Baiada Poultry Pty Limited v The Queen [2012] HCA 13; (2012) 246 CLR 92 Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 Poletti Corporation Pty Limited v SafeWork NSW [2020] NSWCCA 243 Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304
Category:	Procedural rulings
Parties:	SafeWork NSW (Prosecutor) Autocare Services Pty Ltd (Defendant)
Representation:	Counsel: M Scott (Prosecutor) G Livermore KC with B Anniwell Solicitors: Department of Customer Services (Prosecutor) Seyfarth Shaw Australia (Defendant)
File Number(s):	2021/117835