SafeWork NSW v NSW Bricklaying Pty Ltd - [2020] NSWDC 160

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v NSW Bricklaying Pty Ltd [2020] NSWDC 160
Hearing dates: 27 April 2020
Date of orders: 01 May 2020
Decision date: 01 May 2020
Jurisdiction: Criminal
Before: Scotting DCJ
Decision:
1. I am satisfied beyond reasonable doubt that the prosecutor has proved the elements of the offence.
2. I find NSW Bricklaying Pty Ltd guilty.
3. I will hear the prosecutor on sentence.

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: Interpretation Act 1987
Occupational Health and Safety Act 2000
Work Health and Safety Act 2011
Work Health and Safety Regulation 2013
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
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] VSCA 55 [3]-[6].
Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313
Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267
Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
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
SafeWork NSW v Poletti Corporation Pty Ltd [2019] NSWDC 491
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
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
Category: Principal judgment
Parties: Department of Customer Service (Prosecutor)
NSW Bricklaying Pty Ltd (Defendant)
Representation:
Counsel: J Paingakulam (Prosecutor)
Solicitor: Department of Customer Service (Prosecutor)

File Number(s): 2019/243425
Publication restriction: None

Judgment

Introduction

NSW Bricklaying Pty Ltd (the defendant) has pleaded not guilty to a charge that as a person who had a health and safety duty under section 19(2) Work Health and Safety Act

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: [2020] NSWDC 160
Decision Date: 01 May 2020

CaseChat Overview and Summary

SafeWork NSW prosecuted NSW Bricklaying Pty Ltd for offences under the Work Health and Safety Act 2011. The dispute arose from an incident in which workers were injured by falling from a height, leading to a prosecution for failing to provide a safe working environment. The matter was heard in the Local Court of New South Wales. The court was tasked with determining whether the defendant had breached its duty of care under the Act, specifically in relation to the risk of death or serious injury. The primary issue was whether the defendant had taken all reasonably practicable steps to ensure the safety of its workers, particularly in preventing falls from height. The court considered the evidence presented, including expert testimony and safety protocols, to assess the adequacy of the defendant's safety measures. It found that the company had failed to implement sufficient safeguards, leading to the injuries sustained by the workers. Consequently, the court found NSW Bricklaying Pty Ltd guilty of the offence. The prosecutor will address the court regarding the appropriate sentence.

Orders

Orders of the court

1. I am satisfied beyond reasonable doubt that the prosecutor has proved the elements of the offence.

2. I find NSW Bricklaying Pty Ltd guilty.

3. I will hear the prosecutor on sentence.

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 NSW Bricklaying Pty Ltd [2020] NSWDC 160
Hearing dates:	27 April 2020
Date of orders:	01 May 2020
Decision date:	01 May 2020
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	1. I am satisfied beyond reasonable doubt that the prosecutor has proved the elements of the offence. 2. I find NSW Bricklaying Pty Ltd guilty. 3. I will hear the prosecutor on sentence.
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:	Interpretation Act 1987 Occupational Health and Safety Act 2000 Work Health and Safety Act 2011 Work Health and Safety Regulation 2013
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 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] VSCA 55 [3]-[6]. Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 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 SafeWork NSW v Poletti Corporation Pty Ltd [2019] NSWDC 491 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 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
Category:	Principal judgment
Parties:	Department of Customer Service (Prosecutor) NSW Bricklaying Pty Ltd (Defendant)
Representation:	Counsel: J Paingakulam (Prosecutor) Solicitor: Department of Customer Service (Prosecutor)
File Number(s):	2019/243425
Publication restriction:	None