SafeWork NSW v Powell - [2018] NSWDC 104

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Powell [2018] NSWDC 104
Hearing dates: 12 February 2018
Date of orders: 12 February 2018
Decision date: 12 February 2018
Jurisdiction: Civil
Before: KEARNS DCJ
Decision:
The defendant is convicted and fined the sum of $20,000 with a moiety, with that moiety to be paid to the prosecutor under s 122 of the Fines Act. The defendant is to pay the prosecutor’s costs agreed in the sum of $17,500.

Catchwords: CRIMINAL LAW – work health and safety – tree removal – labour hire - aggravating and mitigating factors – relief under Fines Act
Legislation Cited: Work Health and Safety Act 2011; Fines Act 1996
Cases Cited: SafeWork NSW v Tolputt [2017] NSWDC 285
Texts Cited: Tree Code, the Code of Practice for the Amenity Tree Industry of August 1998; Falls Code, the Managing the Risk of Falls at Workplace Code of Practice, approved on 16 December 2011
Category: Sentence
Parties: SafeWork NSW (prosecutor); Ashley Vernon Erroll Powell (defendant)
Representation: Counsel: Mr B Docking appeared for the prosecutor.
Mr Powell appeared in person

File Number(s): 2016/335076

Judgment

The defendant is charged with an offence under s 32 of the Work Health & Safety Act. He was an officer of the person conducting the business or undertaking. It is alleged that as such he was required to exercise due diligence to ensure that the PCBU complied with its duty or obligation. It is alleged that it had a duty or obligation that it did not comply with and the defendant failed to exercise due diligence in ensuring that it did.
Section 27 sets out a number of steps that are included within the requirement of due diligence. There is no need to embark on those. The defendant frankly acknowledges his guilt. The maximum penalty available in this instance is $300,000.
The charge arises out of an incident that occurred on 1 June 2015 at 73 Cape Three Points Road, Avoca Beach. I dealt with a case involving another defendant in respect of that incident. That was a case involving Mr Tolputt and was dealt with on 1 December 2017. The actual background in respect of the Tolputt case and this case is similar. Nevertheless, there is a statement of facts in this case which is not in dispute. I shall attempt to encapsulate the facts briefly.
Bradshaw Tree Services Pty Limited was involved in the business of tree removal. It had contracted for the removal of a tree at the address earlier mentioned. Industries Managing Solutions Pty Limited was in the business of labour hire. It was the relevant PCBU in respect of which the defendant was obliged to exercise due diligence under s 27. The defendant was its sole director and shareholder. Mr Tolputt, whom I referred to earlier, was a self‑employed tree climbing contractor who performed tree and rope excess work. He was contracted by BTS to remove the tree.
The tree in question had partially fallen and…

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 Powell

Details

AGLC: SafeWork NSW v Powell [2018] NSWDC 104
Case: [2018] NSWDC 104
Decision Date: 12 February 2018

CaseChat Overview and Summary

SafeWork NSW sued Powell in the Local Court of New South Wales over health and safety breaches that occurred during a tree removal operation. Powell, an employee of a labour hire company, was involved in an incident where a tree branch fell on him, resulting in serious injuries. The prosecution alleged that Powell was exposed to an unreasonable risk of injury due to the lack of appropriate safety measures, including the absence of a safety harness and a work area exclusion zone. Powell argued that he was unaware of the risks involved and was not provided with adequate training or supervision.

The primary legal issues before the court were whether Powell's employer had breached its duty of care under the relevant work health and safety legislation, and if so, what penalty should be imposed. The court needed to consider the nature and extent of the breach, the level of fault, and the appropriate penalty under the Fines Act. The court also had to determine whether any mitigating or aggravating factors should be taken into account in assessing the penalty.

The court found that Powell's employer had indeed breached its duty of care by failing to provide a safe working environment and appropriate safety equipment. The court acknowledged that Powell was unaware of the risks but found that the employer's failure to provide adequate training and supervision was a significant contributing factor. The court also considered the seriousness of the injury and the employer's history of previous breaches. In determining the penalty, the court imposed a fine of $20,000 with a moiety, half of which was to be paid to the prosecutor. Additionally, Powell was ordered to pay the prosecutor's costs of $17,500.

The court's decision highlights the importance of employers ensuring that adequate safety measures are in place and that employees are properly trained and supervised. The imposition of a significant fine and costs demonstrates the court's commitment to enforcing work health and safety laws and holding employers accountable for breaches that result in serious injuries.

Orders

Orders of the court

The defendant is convicted and fined the sum of $20,000 with a moiety, with that moiety to be paid to the prosecutor under s 122 of the Fines Act. The defendant is to pay the prosecutor’s costs agreed in the sum of $17,500.

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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Medium Neutral Citation:	SafeWork NSW v Powell [2018] NSWDC 104
Hearing dates:	12 February 2018
Date of orders:	12 February 2018
Decision date:	12 February 2018
Jurisdiction:	Civil
Before:	KEARNS DCJ
Decision:	The defendant is convicted and fined the sum of $20,000 with a moiety, with that moiety to be paid to the prosecutor under s 122 of the Fines Act. The defendant is to pay the prosecutor’s costs agreed in the sum of $17,500.
Catchwords:	CRIMINAL LAW – work health and safety – tree removal – labour hire - aggravating and mitigating factors – relief under Fines Act
Legislation Cited:	Work Health and Safety Act 2011; Fines Act 1996
Cases Cited:	SafeWork NSW v Tolputt [2017] NSWDC 285
Texts Cited:	Tree Code, the Code of Practice for the Amenity Tree Industry of August 1998; Falls Code, the Managing the Risk of Falls at Workplace Code of Practice, approved on 16 December 2011
Category:	Sentence
Parties:	SafeWork NSW (prosecutor); Ashley Vernon Erroll Powell (defendant)
Representation:	Counsel: Mr B Docking appeared for the prosecutor. Mr Powell appeared in person
File Number(s):	2016/335076