SafeWork NSW v Grasso; SafeWork NSW v Grasso Consulting Engineers Pty Ltd

SafeWork NSW brought proceedings against Mr Grasso and Grasso Consulting Engineers Pty Ltd (the respondents) in the District Court of New South Wales, alleging breaches of the *Work Health and Safety Act 2011* (NSW) and the *Work Health and Safety Regulation 2017* (NSW). The proceedings concerned the death of a worker, Mr. Vella, who fell from a height while undertaking demolition work at a residential property. SafeWork NSW alleged that the respondents failed to ensure, so far as was reasonably practicable, that the work was carried out without risks to the health and safety of any persons. The District Court found the respondents guilty of the offences. The respondents appealed to the Court of Appeal of the Supreme Court of New South Wales.

The central legal issue before the Court of Appeal was whether the District Court had erred in its findings of guilt against the respondents. Specifically, the appeal concerned the interpretation and application of the duty of care provisions under the *Work Health and Safety Act 2011* (NSW), particularly in relation to the concept of "reasonably practicable" control measures for work at height. The respondents argued that the District Court had misconstrued the evidence and applied an incorrect legal standard when determining whether they had discharged their duties.

The Court of Appeal dismissed the appeals. Gageler, Steward and Gleeson JJ held that the District Court had correctly applied the relevant provisions of the Act and the Regulation. Their Honours found that the evidence supported the conclusion that the respondents had failed to implement adequate safety measures to mitigate the risks associated with working at height, and that such measures were reasonably practicable. The court affirmed that the duty to ensure health and safety so far as is reasonably practicable requires a proactive approach, and that the respondents had not demonstrated that they had taken all reasonably practicable steps to prevent the fatality. The appeals were dismissed, and the convictions stood.