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SafeWork NSW v Bennett

SafeWork NSW v Bennett

Case [2022] NSWDC 332 12 August 2022

Criminal Liability

Unconscionable Conduct

Fiduciary Duty

Risk Assessment

Occupational Health and Safety

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Bennett [2022] NSWDC 332
Hearing dates: 1, 2, 3 August 2022
Date of orders: 12 August 2022
Decision date: 12 August 2022
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
Proceedings 2020/303207 – The Section 19(1) Summons
(1)   The elements set out in the Summons dated 22 October 2020 have been proved beyond reasonable doubt.
(2)   I find the defendant Mr Nigel Bennett guilty.
(3)   The matter will be listed for a sentence hearing on a date convenient to the parties.
Proceedings 2020/303225 – The Section 19(2) Summons
(1)   The elements set out in the Summons dated 22 October 2020 have been proved beyond reasonable doubt.
(2)   I find the defendant Mr Nigel Bennett guilty.
(3)   The matter will be listed for a sentence hearing on a date convenient to the parties.

Catchwords:
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury
CRIMINAL LAW – elements of offence – whether defendant owed a health and safety duty – whether there was a failure to comply with that duty – whether that failure exposed workers to the risk of death or serious injury – whether that failure exposed other persons to the risk of death or serious injury
CRIMINAL LAW – reasonable practicability – likelihood of the risk – knowledge of the risk – what the defendant ought reasonably to have known
OTHER – defendant engaged as a contractor to operate a crane to load a dismantled centrifuge onto a flatbed truck – boom of the crane came into contact with, or in close proximity to, live overhead power lines – two persons suffered electric shocks – failure to forbid unqualified worker operating crane – failure to provide an appropriately qualified crane driver – failure to instruct worker to undertake site induction – failure to undertake joint safety assessment – failure to ensure crane was not in the vicinity of overhead power lines – failure to require dedicated spotter and/or qualified dogman – failure to conduct site-specific risk assessment

Legislation Cited:
Criminal Procedure Act 1986 (NSW), s 133(2)
Evidence Act 1995 (NSW), s 38
Work Health & Safety Act 2011 (NSW) ss 3, 7, 12A, 16, 17, 18, 19, 32, 275
Work Health and Safety Regulation 2017 (NSW) cll 166, 291, 299

Cases Cited:
Baiada Poultry Pty Limited v The Queen [2012] HCA 13; (2012) 246 CLR 92
Bulga Underground Operations v Nash [2016] NSWCCA 37
Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313
Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267; (2001) 110 IR 57
Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288
Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39
Poletti Corporation Pty Limited v SafeWork NSW [2020] NSWCCA 243
Royall v The Queen [1991] HCA 27;

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 Bennett

Details

AGLC: SafeWork NSW v Bennett [2022] NSWDC 332
Case: [2022] NSWDC 332
Decision Date: 12 August 2022

CaseChat Overview and Summary

SafeWork NSW brought proceedings against Nigel Bennett, a contractor engaged to operate a crane, for breaches of work health and safety laws. The dispute arose from an incident where the crane's boom came into contact with live overhead power lines, causing two workers to suffer electric shocks. The court had to determine if Bennett owed a duty of care under work health and safety regulations, whether he failed to comply with that duty, and if his failure exposed workers to the risk of death or serious injury. Additionally, the court assessed whether Bennett's actions were reasonable in the circumstances, considering the likelihood and knowledge of the risk involved.

The court examined whether Bennett had the requisite duty of care as a contractor and if his actions constituted a failure to comply with that duty. It considered whether the failure to prohibit an unqualified worker from operating the crane, provide a qualified driver, instruct the worker to undertake a site induction, conduct a joint safety assessment, ensure the crane was not near power lines, and require a dedicated spotter or qualified dogman amounted to a breach of his duty. The court also deliberated on what Bennett should have reasonably known and whether his actions exposed workers to a foreseeable risk of death or serious injury.

In its decision, the court found that Bennett did indeed owe a duty of care under the work health and safety legislation. It concluded that he failed to comply with this duty by not ensuring the crane was operated by a qualified person, not providing necessary site inductions, not conducting a joint safety assessment, and not taking steps to prevent the crane from coming into proximity with overhead power lines. The court held that these failures exposed workers to a risk of death or serious injury, which was reasonably foreseeable. Consequently, Bennett was found guilty on both charges.

The court ordered that the findings be listed for a sentence hearing at a later date. It confirmed that the elements of the charges had been proven beyond reasonable doubt in both the Section 19(1) and Section 19(2) summonses.

Orders

Orders of the court

Proceedings 2020/303207 – The Section 19(1) Summons

(1) The elements set out in the Summons dated 22 October 2020 have been proved beyond reasonable doubt.

(2) I find the defendant Mr Nigel Bennett guilty.

(3) The matter will be listed for a sentence hearing on a date convenient to the parties.

Proceedings 2020/303225 – The Section 19(2) Summons

(1) The elements set out in the Summons dated 22 October 2020 have been proved beyond reasonable doubt.

(2) I find the defendant Mr Nigel Bennett guilty.

(3) The matter will be listed for a sentence hearing on a date convenient to the parties.

Background

Background to the litigation

Full text does not contain this section.

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

AGLC Citation

SafeWork NSW v Bennett [2022] NSWDC 332

Most Recent Citation

SafeWork NSW v Bennett (No.2) [2022] NSWDC 453

Cases citing this decision · 1 of 1 shown

SafeWork NSW v Bennett (No.2)
[2022] NSWDC 453 Para 2

…ailed to comply with that duty and thereby exposed Mr Druce to a risk of death or serious injury contrary to s 32 of the Act - SafeWork NSW v Bennett [2022] NSWDC 332 (the primary judgment).…

View all 1 citing cases →

Cases cited in this decision · 12 of 12 shown

Orr v Hunter Quarries Pty Ltd
[2022] NSWCCA 39 Para 36

…incident is relevant to whether the pleaded measures were reasonably practicable but is not necessarily determinative: Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39.…
Grasso Consulting Engineers Pty Ltd v SafeWork NSW; Grasso v SafeWork NSW
[2021] NSWCCA 288 Para 202

…The Court of Criminal Appeal recently considered the issue of causation in Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288. In that case the defendant was an engineer who was asked to give advice concerning the appropriate method for the demolition of a large building. The defendant made handwri…
Poletti Corporation Pty Ltd v SafeWork NSW
[2020] NSWCCA 243 Para 39

…ssible on the question of whether the steps particularised in the Summons were reasonably practicable: Poletti Corporation Pty Limited v SafeWork NSW [2020] NSWCCA 243 at [9] and [35].…
Bulga Underground Operations Pty Ltd v Nash
[2016] NSWCCA 37 Para 42

…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 Para 38

…e safety of a working environment does not, without more, demonstrate a breach of the duty: Baiada Poultry Pty Limited v The Queen [2012] HCA 13; (2012) 246 CLR 92 at [15] and [38] per French CJ, Gummow, Hayne and Crennan JJ.…
Baiada Poultry Pty Limited v The Queen
[2012] HCA 13 Para 38

…me effect on the safety of a working environment does not, without more, demonstrate a breach of the duty: Baiada Poultry Pty Limited v The Queen [2012] HCA 13; (2012) 246 CLR 92 at [15] and [38] per French CJ, Gummow, Hayne and Crennan JJ.…
Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales
[2011] NSWCA 316 Para 44

…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 death or injury, but rather whether there was a…
Laing O'Rourke (BMC) Pty Ltd v Kirwin
[2011] WASCA 117 Para 33

…relevant field of activity and not the actual knowledge of a specific defendant in particular circumstances: Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33].…
Slivak v Lurgi (Australia) Pty Ltd
[2001] HCA 6 Para 34

…cable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304 at [37] per Gleeson CJ, Gummow and Hayne JJ.…
Royall v The Queen
[1991] HCA 27 Para 43

…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] HCA 27; (1991) 172 CLR 378.…
Smith v Broken Hill Pty Ltd
[1957] HCA 34 Para 41

…mployee’s negligence in carrying out his or her duties then this is a factor which the employer must take into account: Smith v Broken Hill Pty Ltd [1957] HCA 34; (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by workers but defendants must conduct operations on t…
Dunlop Rubber Australia Ltd v Buckley
[1952] HCA 72 Para 41

…nt 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] HCA 72; (1952) 87 CLR 313 at 320 per Dixon CJ. If there is a foreseeable risk of injury arising from the employee’s negligence in carrying out his or her du…

Legislation cited in this decision · 3

Criminal Procedure Act 1986 (NSW)
133(2) 2 mentions (from Para 11)
Evidence Act 1995 (Cth)
38 2 mentions (from Para 61)
Work Health and Safety Act 2011 (ACT)
1 mention (from Para 1)

Medium Neutral Citation:	SafeWork NSW v Bennett [2022] NSWDC 332
Hearing dates:	1, 2, 3 August 2022
Date of orders:	12 August 2022
Decision date:	12 August 2022
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	Proceedings 2020/303207 – The Section 19(1) Summons (1) The elements set out in the Summons dated 22 October 2020 have been proved beyond reasonable doubt. (2) I find the defendant Mr Nigel Bennett guilty. (3) The matter will be listed for a sentence hearing on a date convenient to the parties. Proceedings 2020/303225 – The Section 19(2) Summons (1) The elements set out in the Summons dated 22 October 2020 have been proved beyond reasonable doubt. (2) I find the defendant Mr Nigel Bennett guilty. (3) The matter will be listed for a sentence hearing on a date convenient to the parties.
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury CRIMINAL LAW – elements of offence – whether defendant owed a health and safety duty – whether there was a failure to comply with that duty – whether that failure exposed workers to the risk of death or serious injury – whether that failure exposed other persons to the risk of death or serious injury CRIMINAL LAW – reasonable practicability – likelihood of the risk – knowledge of the risk – what the defendant ought reasonably to have known OTHER – defendant engaged as a contractor to operate a crane to load a dismantled centrifuge onto a flatbed truck – boom of the crane came into contact with, or in close proximity to, live overhead power lines – two persons suffered electric shocks – failure to forbid unqualified worker operating crane – failure to provide an appropriately qualified crane driver – failure to instruct worker to undertake site induction – failure to undertake joint safety assessment – failure to ensure crane was not in the vicinity of overhead power lines – failure to require dedicated spotter and/or qualified dogman – failure to conduct site-specific risk assessment
Legislation Cited:	Criminal Procedure Act 1986 (NSW), s 133(2) Evidence Act 1995 (NSW), s 38 Work Health & Safety Act 2011 (NSW) ss 3, 7, 12A, 16, 17, 18, 19, 32, 275 Work Health and Safety Regulation 2017 (NSW) cll 166, 291, 299
Cases Cited:	Baiada Poultry Pty Limited v The Queen [2012] HCA 13; (2012) 246 CLR 92 Bulga Underground Operations v Nash [2016] NSWCCA 37 Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313 Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267; (2001) 110 IR 57 Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288 Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 Poletti Corporation Pty Limited v SafeWork NSW [2020] NSWCCA 243 Royall v The Queen [1991] HCA 27;