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SafeWork NSW v H D Projects Pty Ltd

SafeWork NSW v H D Projects Pty Ltd

Case [2020] NSWDC 765 17 December 2020

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District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v H D Projects Pty Ltd [2020] NSWDC 765
Hearing dates: 2-3 December 2020
Date of orders: 17 December 2020
Decision date: 17 December 2020
Jurisdiction: Criminal
Before: Scotting DCJ
Decision:
1 I find the defendant guilty of the s 32 offence relating to the breach of s 19(2) of the Act.

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

Legislation Cited:
Criminal Procedure Act 1986
Interpretation Act 1987
Occupational Health and Safety Act 2000
Work Health and Safety Regulation 2017

Cases Cited:
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
Hammersley Iron Pty Ltd v Robertson (unreported WASC 2 October 1998)
Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197
Kench v Adams (1906) 23 WN (NSW) 48
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99
Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
Mahmood v Western Australia (2008) 232 CLR 397
Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45
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
Royall v The Queen (1991) 172 CLR 378
S Kidman & Co Ltd v Dr John Lowndes CM and Director of Public Prosecutions (NT) [2016] NTCA 5
SafeWork New South Wales v Rawson Homes Pty Ltd [2016] NSWDC 237
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
TNT Australia Ltd v Christie (2003) 65 NSWLR 1
Walplan Pty Ltd v Wallace (1985) 8 FCR 27
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
WorkCover Authority of NSW v E & T Bricklaying…

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 H D Projects Pty Ltd

Details

AGLC: SafeWork NSW v H D Projects Pty Ltd [2020] NSWDC 765
Case: [2020] NSWDC 765
Decision Date: 17 December 2020

CaseChat Overview and Summary

In SafeWork NSW v H D Projects Pty Ltd, the plaintiff, SafeWork NSW, brought an action against the defendant, H D Projects Pty Ltd, for breaches of work health and safety regulations. The dispute arose from an incident where workers were injured on a construction site, leading to a prosecution for violations of the Occupational Health and Safety Act 2000. The court was required to determine whether the defendant had contravened specific provisions of the Act and whether these breaches constituted an offence under the legislation. The primary legal issues centred on the interpretation and application of the statutory duties imposed on employers and persons undertaking a business or undertaking, specifically the duty to ensure, so far as is reasonably practicable, the health and safety of workers, and the duty to avoid risks of death or serious injury.

The court meticulously examined the evidence and statutory provisions to assess whether the defendant had failed to meet its obligations under the Act. It found that the defendant had indeed breached the specific section of the Act by not ensuring the health and safety of its workers, leading to their injuries. The court concluded that the defendant's actions constituted an offence under the statute. The reasoning was grounded in the legislative framework and the factual circumstances of the case, demonstrating that the defendant's conduct fell short of the required standard of care.

Consequently, the court found the defendant guilty of the offence relating to the breach of section 19(2) of the Occupational Health and Safety Act 2000. The court's decision was based on a thorough analysis of the statutory duties, the nature of the injuries sustained by the workers, and the evidence presented regarding the defendant's compliance with the legislative requirements. The judgment underscores the importance of adhering to occupational health and safety standards to prevent workplace injuries.

Orders

Orders of the court

1 I find the defendant guilty of the s 32 offence relating to the breach of s 19(2) of the Act.

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

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Ratio Decidendi

Legal Principle Established

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Citations

SafeWork NSW v H D Projects Pty Ltd [2020] NSWDC 765

Most Recent Citation

Carmichael v Commonwealth of Australia [2022] VSC 364

Cases Citing This Decision

HD Projects Pty Ltd v SafeWork NSW [2022] NSWCCA 212
Citation 1 (Para 1)

…lth and Safety Act 2011 (NSW) (“WHS Act”) by reason of a breach of its duties under s 19(2) of that Act ( SafeWork NSW v H D Projects Pty Ltd [2020] NSWDC 765).…
Carmichael v Commonwealth of Australia [2022] VSC 364
Citation 2 (Para 1)

…nsport Services P/L t/as Tamex [2016] NSWDC 295, [31]; Orr v Cobar Management Pty Ltd [2019] NSWDC 796, [195]; Safe Work NSW v H D Projects Pty Ltd [2020] NSWDC 765, [86].…
SafeWork NSW v HD Projects Pty Ltd [2021] NSWDC 126
Citation 3 (Para 2)

…The Court’s reasons for the finding of guilt are set out in its decision SafeWork NSW v HD Projects Pty Ltd [2020] NSWDC 765 (the verdict judgment).…

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 82)

…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].…
Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45
Citation 2 (Para 85)

…kills or knowledge is a relevant consideration: Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99 and Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45 at [423]-[429]. For example, where a contracting party relies on a specialist contractor to perform a task demonstrably within the contractor’s area…
SafeWork New South Wales v Rawson Homes Pty Ltd [2016] NSWDC 237
Citation 3 (Para 118)

…ence to persons other than “workers” who are owed the duty provided for by s 19(1)of the Act: SafeWork New South Wales v Rawson Homes Pty Ltd [2016] NSWDC 237 and S Kidman & Co Ltd v Dr John Lowndes CM and Director of Public Prosecutions (NT) [2016] NTCA 5 at [62].…
S Kidman & Co Ltd v Dr John Lowndes CM and Director of Public Prosecutions (NT) [2016] NTCA 5
Citation 4 (Para 118)

…k New South Wales v Rawson Homes Pty Ltd [2016] NSWDC 237 and S Kidman & Co Ltd v Dr John Lowndes CM and Director of Public Prosecutions (NT) [2016] NTCA 5 at [62].…
DPP v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55
Citation 5 (Para 72)

…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 6 (Para 90)

…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].…
WorkCover Authority of NSW (Inspector Moore) v E and T Bricklaying Pty Ltd [2015] NSWDC 369
Citation 7 (Para 99)

…In WorkCover Authority of NSW v E & T Bricklaying Pty Ltd [2015] NSWDC 369, Judge Kearns SC rejected the argument that a worker was not “at work in the business or undertaking” by performing work that his employer was not engaged to do. In that case, the supervisor of a bricklaying contractor was asked by the direc…
Baiada Poultry Pty Ltd v The Queen [2012] HCA 14
Citation 8 (Para 77)

…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] per French CJ, Gummow, Hayne and Crennan JJ.…
Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99
Citation 9 (Para 85)

…Reliance on a person with specialist skills or knowledge is a relevant consideration: Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99 and Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45 at [423]-[429]. For example, where a contracting party relies on a specialist contractor to perform a task dem…
Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316
Citation 10 (Para 92)

…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 11 (Para 75)

…uld 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 12 (Para 71)

…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 13 (Para 70)

…. The existence of the risk constitutes a breach of section 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 section 32 offence is the risk of death or serious injury.…
Kirk v Industrial Relations Commission of New South Wales [2008] NSWCA 156
Citation 14 (Para 70)

…reach of section 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 section 32 offence is the risk of death or serious injury.…
Mahmood v Western Australia [2008] HCA 1
Citation 15 (Para 147)

…operly reach conclusions about issues of fact, but whether in the circumstances they should entertain a reasonable doubt: Mahmood v Western Australia (2008) 232 CLR 397 at [27].…
R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181
Citation 16 (Para 82)

…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].…
TNT Australia Pty Ltd v Christie [2003] NSWCA 47
Citation 17 (Para 104)

…n employee but has a relationship with the host employer that is analogous to an employer/employee relationship: TNT Australia Ltd v Christie (2003) 65 NSWLR 1 at [41]. However, the meaning of employee in the Act must be determined by reference to the objects of the Act and the context in which the term is used, rat…
Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6
Citation 18 (Para 76)

…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] per Gleeson CJ, Gummow and Hayne JJ.…
Royall v The Queen [1991] HCA 27
Citation 19 (Para 91)

…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.…
Commonwealth Savings Bank of Australia v State Bank of New South Wales [1985] FCA 479
Citation 20 (Para 3)

…f a corporation and it is designed to attribute conduct to the corporation for which it would not otherwise be responsible: Walplan Pty Ltd v Wallace (1985) 8 FCR 27 at 38 per Lockhart J. In order to invoke the deeming provision the employee engaging in conduct must be acting within the actual or apparent scope of…
Smith v Broken Hill Pty Ltd [1957] HCA 34
Citation 21 (Para 80)

…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 22 (Para 80)

…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 per 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 fac…

Legislation Cited

Criminal Procedure Act 1986 (NSW)
1 mention (from Para 97)
Interpretation Act 1987 (NSW)
1 mention (from Para 120)
Occupational Health and Safety Act 2000 (NSW)
1 mention (from Para 77)
Work Health and Safety Act 2011 (ACT)
1 mention (from Para 1)

Medium Neutral Citation:	SafeWork NSW v H D Projects Pty Ltd [2020] NSWDC 765
Hearing dates:	2-3 December 2020
Date of orders:	17 December 2020
Decision date:	17 December 2020
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	1 I find the defendant guilty of the s 32 offence relating to the breach of s 19(2) of the Act.
Catchwords:	CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – workers injured
Legislation Cited:	Criminal Procedure Act 1986 Interpretation Act 1987 Occupational Health and Safety Act 2000 Work Health and Safety Regulation 2017
Cases Cited:	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 Hammersley Iron Pty Ltd v Robertson (unreported WASC 2 October 1998) Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 Kench v Adams (1906) 23 WN (NSW) 48 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99 Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 Mahmood v Western Australia (2008) 232 CLR 397 Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45 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 Royall v The Queen (1991) 172 CLR 378 S Kidman & Co Ltd v Dr John Lowndes CM and Director of Public Prosecutions (NT) [2016] NTCA 5 SafeWork New South Wales v Rawson Homes Pty Ltd [2016] NSWDC 237 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 TNT Australia Ltd v Christie (2003) 65 NSWLR 1 Walplan Pty Ltd v Wallace (1985) 8 FCR 27 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 WorkCover Authority of NSW v E & T Bricklaying…