SafeWork NSW v BSA Limited (No.2) - [2023] NSWDC 73

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v BSA Limited (No.2) [2023] NSWDC 73
Hearing dates: 13, 14, 15, 16, 17, 22, 28 February, 1, 3, 6, 7, 9, 10 March
Date of orders: 31 March 2023
Decision date: 31 March 2023
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   The allegations set out in par 8(i) and subpars 9(d), 9(e), 9(g)(i), 9(g)(ii), 9(g)(iii) and 9(g)(v) in the Further Amended Summons filed on 1 March 2023 have been proved beyond reasonable doubt.
(2)   I find the defendant BSA Limited guilty.
(3)   The matter will be listed for sentence hearing on a date convenient to the parties.

Catchwords:
CRIMINAL LAW – prosecution – work health and safety – duty of person conducting a business or undertaking – 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 the failure exposed a worker to the risk of death or serious injury – manifestation of the risk is not an element of the offence
PROCEDURAL – reasonably practicable measures – whether the defendant knew of, or ought to have known of, the risk
PROCEDURAL – sentence hearing – dispute as to facts – dispute as to the existence of risk – dispute as to failure to take reasonably practicable measures to eliminate or minimise the risk – determination of disputed matters upon a sentencing hearing
OTHER – worker installing Foxtel satellite dish and set top boxes – existing dangerous fault in wiring of house – worker electrocuted when he came into contact with live wires and an earth underneath the house

Legislation Cited:
Work Health and Safety Act 2011, s 3, 7,12A, 16, 17, 18, 19, 32, 244, 274, 275
Work Health and Safety Regulations 2017, reg 156

Cases Cited:
Alameddine v R [2020] NSWCCA 232
Baiada Poultry Pty Limited v The Queen [2012] HCA 13; (2012) 246 CLR 92
BC v R [2020] NSWCCA 329
Bulga Underground Operations v Nash [2016] NSWCCA 37
Chiang v R [2016] NSWCCA 45
Cowling v R [2015] NSWCCA 213
Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267; (2001) 110 IR 57
KMC v Director of Public Prosecutions (SA) [2020] HCA 6
Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
Landmark Roofing Pty Ltd v SafeWork NSW [2021] NSWCCA 95
Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1
Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39
Poletti Corporation Pty Limited v SafeWork NSW [2020] NSWCCA
R v AB [2011] NSWCCA 229
R v Kirkland [2005] NSWCCA 130
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Pearce [2020] NSWCCA 61
R v Wang [2020]…

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: [2023] NSWDC 73
Decision Date: 31 March 2023

CaseChat Overview and Summary

SafeWork NSW brought a prosecution against BSA Limited concerning an incident where a worker was electrocuted while installing a Foxtel satellite dish and set-top boxes at a residential property. The worker came into contact with live electrical wires and an earth underneath the house, leading to a tragic outcome. The prosecution was heard in the relevant Australian court, where the primary focus was on whether BSA Limited had a duty of care under work health and safety laws and whether they breached this duty.

The central legal issues addressed by the court included whether BSA Limited owed a duty of care regarding the health and safety of the worker, whether there was a failure to comply with that duty, and if the failure exposed the worker to a risk of death or serious injury. A critical aspect of the discussion was the understanding that the manifestation of the risk itself is not a necessary element of the offence. Furthermore, the court considered whether the defendant knew or ought to have known about the risk and whether reasonably practicable measures were taken to eliminate or minimise the risk.

The court found that BSA Limited did indeed owe a duty of care under the relevant legislation, and there was a failure to comply with this duty. It was established that the failure to address the known risk led to the worker's electrocution. The court addressed the disputed matters during the sentencing hearing, ultimately determining the facts in favour of the prosecution. Consequently, the allegations were found to be proven beyond reasonable doubt.

In conclusion, the court found BSA Limited guilty on multiple counts related to the breach of work health and safety duties. The matter was to be listed for a sentencing hearing to determine the appropriate penalty. The final orders included the confirmation of the guilty verdict on specific charges and the scheduling of the sentencing hearing.

Orders

Orders of the court

(1) The allegations set out in par 8(i) and subpars 9(d), 9(e), 9(g)(i), 9(g)(ii), 9(g)(iii) and 9(g)(v) in the Further Amended Summons filed on 1 March 2023 have been proved beyond reasonable doubt.

(2) I find the defendant BSA Limited guilty.

(3) The matter will be listed for 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

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 BSA Limited (No.2) [2023] NSWDC 73
Hearing dates:	13, 14, 15, 16, 17, 22, 28 February, 1, 3, 6, 7, 9, 10 March
Date of orders:	31 March 2023
Decision date:	31 March 2023
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) The allegations set out in par 8(i) and subpars 9(d), 9(e), 9(g)(i), 9(g)(ii), 9(g)(iii) and 9(g)(v) in the Further Amended Summons filed on 1 March 2023 have been proved beyond reasonable doubt. (2) I find the defendant BSA Limited guilty. (3) The matter will be listed for sentence hearing on a date convenient to the parties.
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – duty of person conducting a business or undertaking – 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 the failure exposed a worker to the risk of death or serious injury – manifestation of the risk is not an element of the offence PROCEDURAL – reasonably practicable measures – whether the defendant knew of, or ought to have known of, the risk PROCEDURAL – sentence hearing – dispute as to facts – dispute as to the existence of risk – dispute as to failure to take reasonably practicable measures to eliminate or minimise the risk – determination of disputed matters upon a sentencing hearing OTHER – worker installing Foxtel satellite dish and set top boxes – existing dangerous fault in wiring of house – worker electrocuted when he came into contact with live wires and an earth underneath the house
Legislation Cited:	Work Health and Safety Act 2011, s 3, 7,12A, 16, 17, 18, 19, 32, 244, 274, 275 Work Health and Safety Regulations 2017, reg 156
Cases Cited:	Alameddine v R [2020] NSWCCA 232 Baiada Poultry Pty Limited v The Queen [2012] HCA 13; (2012) 246 CLR 92 BC v R [2020] NSWCCA 329 Bulga Underground Operations v Nash [2016] NSWCCA 37 Chiang v R [2016] NSWCCA 45 Cowling v R [2015] NSWCCA 213 Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313 Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267; (2001) 110 IR 57 KMC v Director of Public Prosecutions (SA) [2020] HCA 6 Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 Landmark Roofing Pty Ltd v SafeWork NSW [2021] NSWCCA 95 Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1 Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 Poletti Corporation Pty Limited v SafeWork NSW [2020] NSWCCA R v AB [2011] NSWCCA 229 R v Kirkland [2005] NSWCCA 130 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Pearce [2020] NSWCCA 61 R v Wang [2020]…