SafeWork NSW v KD and JT Westbrook Pty Ltd

In the matter of SafeWork NSW v KD and JT Westbrook Pty Ltd, the defendant, a company engaged in the business of mustering sheep, was prosecuted under the Work Health and Safety Act 2011 (NSW) for the death of one of its employees. The employee had died from head and spinal injuries sustained when he fell from a motorcycle while chasing dingoes during the mustering process. The prosecution argued that the defendant failed to ensure the employee wore a helmet while riding the motorcycle, which was a reasonably practicable safety measure. The defendant, on the other hand, contended that the employee's decision to ride the motorcycle without a helmet was an independent act that broke the chain of causation between the pleaded failure and the injury.

The primary legal issue before the court was whether the defendant's pleaded failure to ensure the employee wore a helmet constituted a breach of their duty under the Act. Additionally, the court had to determine if the employee's carelessness in riding the motorcycle without a helmet severed the chain of causation. Another critical issue was whether the prosecution was required to prove that the injury was caused by the pleaded failure, or if it was sufficient to prove that the pleaded failure exposed the employee to a risk of injury.

The court found that the defendant owed a duty to ensure the safety of its employees under the Work Health and Safety Act 2011 (NSW). The court held that the risk of injury was objectively known and obvious, and that the employee's role in chasing dingoes was part of the mustering work. The court also found that wearing a helmet was reasonably practicable and that the defendant's failure to ensure the employee wore one constituted a breach of their duty. The court held that the employee's carelessness did not sever the chain of causation, as the pleaded failure was a significant contributing factor to the injury. The court further determined that the prosecution must prove all relevant facts beyond reasonable doubt, including that the injury was caused by the pleaded failure.

The court found the defendant guilty of the offence and ordered a sentence hearing at a later date. The court also indicated its intention to consider making an adverse publicity order under section 236 of the Act, inviting the parties to present evidence on the proposed publication at the sentence hearing.