SafeWork NSW v Poletti Corporation

Case [2019] NSWDC 491


District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: SafeWork NSW v Poletti Corporation Pty Ltd [2019] NSWDC 491
Hearing dates: 12-16 August 2019; 19-22 August 2019; 30 August 2019
Date of orders: 13 September 2019
Decision date: 13 September 2019
Jurisdiction:Criminal
Before: Scotting DCJ
Decision:

1 The prosecution has proved all of the elements of the offence beyond reasonable doubt.
2 I find the defendant guilty.

Catchwords:

CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of PCBU to other persons – risk of death or serious injury – injury of worker

WORK HEALTH AND SAFETY – fall from height - likelihood of risk occurring – whether defendant had knowledge of risk - whether risk reasonably foreseeable – reasonable practicable – fall prevention - control measures – relevance of Australian Standard – provision of work platforms and edge protection - causation
Legislation Cited: 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 The Queen (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
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
Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
MR & RC Smith Pty Limited trading as Ultra Tune (Osborne Park) v Wyatt (No 2) [2012] WASCA 110
Qantas Airways Ltd v Chief Commissioner of State Revenue [2008] NSWSC 1049
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 Proprietary Company 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 (Inspector Mulder) v Arbor Products International (Australia) Pty Limited [2000]…

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Details
AGLC
SafeWork NSW v Poletti Corporation Pty Ltd [2019] NSWDC 491
Case
[2019] NSWDC 491
Decision Date

CaseChat Overview and Summary

SafeWork NSW brought proceedings against Poletti Corporation, seeking to enforce compliance and recover penalties under the Work Health and Safety Act 2011 (NSW). The case arose from an incident where a worker was seriously injured after falling from a height at a construction site managed by Poletti Corporation. The dispute centred on whether Poletti Corporation had fulfilled its obligations under the Act to ensure the health and safety of workers, specifically in relation to the risk of falls from heights.

The court was required to determine if Poletti Corporation had a duty to eliminate or mitigate the risk of falls from height, whether the risk was reasonably foreseeable, and whether the measures taken to prevent such falls were reasonable and practicable. This included examining whether the company was aware of the risk, if the risk was reasonably foreseeable, and if the measures taken to prevent falls were compliant with the relevant Australian Standard. Additionally, the court considered the adequacy of the control measures, such as the provision of work platforms and edge protection, in mitigating the risk of falls.

The court found that Poletti Corporation was aware of the risk of falls from height and that the risk was reasonably foreseeable. It was determined that the measures taken by Poletti Corporation were not sufficient to mitigate the risk effectively. The court highlighted that the company had failed to provide adequate work platforms and edge protection, which are recognised as reasonable and practicable measures in preventing falls. The court also noted the relevance of the Australian Standard in assessing the adequacy of the control measures. Consequently, the court held that Poletti Corporation had breached its duty under the Act.

In conclusion, the court found Poletti Corporation guilty of the offence. The prosecution successfully demonstrated that Poletti Corporation had failed to comply with its statutory obligations to ensure the health and safety of workers by not implementing adequate measures to prevent falls from heights. The court's decision underscores the importance of adhering to safety standards and taking proactive steps to eliminate or mitigate foreseeable risks in the workplace.

Orders

Orders of the court

1 The prosecution has proved all of the elements of the offence beyond reasonable doubt.

2 I find the defendant guilty.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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