SafeWork NSW v Prime Marble & Granite Pty Ltd

[2024] NSWDC 17

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

SafeWork NSW v Prime Marble & Granite Pty Ltd [2024] NSWDC 17

Hearing dates:

2 February 2024

Date of orders:

13 February 2024

Decision date:

13 February 2024

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

In proceedings 2023/103537:

(1)   Dismiss the defendant’s Notice of Motion filed on 4 December 2023.

(2) The exhibits are returned.

In proceedings 2023/103574:

(1)   Dismiss the defendant’s Notice of Motion filed on 4 December 2023.

(2) The exhibits are returned.

Catchwords:

LIMITATION PERIOD – whether prosecutions under Work Health and Safety Act 2011 have been brought within 2-year limitation period

Legislation Cited:

Work Health and Safety Act 2011, ss 19, 30, 32, 232(1)(a)

Work Health and Safety Regulation 2017, Sch 14

Cases Cited:

Witheyman v Van Riet [2008] QCA 168

Category:

Procedural rulings

Parties:

SafeWork NSW (Prosecutor)
Prime Marble & Granite Pty Ltd (Defendant)

Representation:

Counsel:
C Magee (Prosecutor)
R Pontello SC (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)
KDA Legal (Defendant)

File Number(s):

2023/103537; 2023/103574

Judgment

Introduction

1. This interlocutory judgment concerns a Motion dated 4 December 2023, filed in each matter, by which the defendant seeks an order dismissing the proceedings. Put shortly, the defendant submits that the prosecution case has been brought out of time.

Proceedings 2023/103537 concerning Mr Geng

2. By a Summons filed on 30 March 2023 the prosecutor SafeWork NSW (SafeWork) alleges that in the period between 5 February 2015 and 1 April 2018 the defendant Prime Marble & Granite Pty Ltd (Prime Marble) failed to comply with its work health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (the WHS Act). The Summons alleges that Prime Marble failed to ensure, so far as was reasonably practicable, the health and safety of workers at work in its business, and the failure to comply with that duty exposed “a worker, in particular Rong Kang Geng” to a risk of death or serious injury contrary to s 32 of the WHS Act.

3. Annexure A to the Summons alleges that Mr Geng worked for Prime Marble as a full-time labourer/polisher, working on manufactured stone products which contained high levels of crystalline silica. It is alleged that cutting, grinding, drilling, shaping and polishing of the manufactured stone products produced high levels of airborne respirable crystalline silica (RCS).

4. Annexure A to the Summons pleads that there was a risk to workers, in particular Mr Geng, acquiring serious illness, in particular silicosis or accelerated silicosis, as a result of the repeated inhalation of airborne RCS arising from work at Prime Marble.

5. Annexure A to the Summons pleads that during the relevant period there was a Workplace Exposure Standard (WES) for RCS in place, which was 0.1 mg/m³ measured over an eight-hour time weighted average. Annexure A to the Summons pleads that repeated exposure to and inhalation by workers of airborne RCS at levels below the WES over an extended period can cause them to acquire silicosis or accelerated silicosis.

6. Annexure A to the Summons pleads that there were reasonably practicable steps which could have been taken to minimise the risk arising from inhalation of RCS.

7. Annexure A to the Summons pleads that as a result of the breach of duty by Prime Marble, Mr Geng was exposed to a risk of death or serious illness, in particular, silicosis.

Proceedings 2023/103574 concerning Mr Zhang

8. By a Summons filed on 30 March 2023 the prosecutor alleges that in the period between 11 July 2012 and 1 April 2018 Prime Marble failed to comply with its health and safety duty under s 19(1) of the WHS Act, in that it failed to take reasonably practicable steps and thus exposed a worker Mr Xing Guo Zhang to risk of death or serious injury contrary to s 32 of the WHS Act.

9. Annexure A to the Summons is in similar terms to the Summons and its annexure in the Geng proceedings. It alleges that Mr Zhang was employed as a full-time machine operator, which exposed him to high levels of crystalline silica dust from working with manufactured stone products. The duty, the risk and the failure to comply with the duty are pleaded in terms the same as those pleaded in the Geng Summons and its annexure.

10. Annexure A to the Summons pleads that as a result of the breach of duty by Prime Marble, Mr Zhang was exposed to a risk of death and/or acquiring serious occupational illness, in particular silicosis.

Notice of Motion dated 4 December 2023

11. Identical Motions were filed in the Geng and in the Zhang proceedings. The orders sought are as follows:

“1 An order, pursuant to s 232(1)(a) of the Work Health & Safety Act 2011 (NSW), that summons 2023/103537 be dismissed.

2 An order, pursuant to s 232(1)(a) of the Work Health & Safety Act 2011 (NSW), that summons 2023/103574 be dismissed.

3 An order, pursuant to s 257C(1) of the Criminal Procedure Act 1986 that the prosecutor pay professional costs to the Registrar of the Court for payment to the Defendant.”

Limitation Period for Prosecutions

12. Section 232(1)(a) of the WHS Act provides that proceedings for an offence against the WHS Act may be brought within two years after the offence first comes to the notice of the Regulator.

13. This requires a simple factual determination. Each Summons was filed on 30 March 2023. Two years before that date is 30 March 2021. Did the offence come to the notice of the Regulator before 30 March 2021? If it did, the proceedings are an abuse of process which are doomed to fail and each Summons should be dismissed.

14. Since s 232 of the WHS Act refers to the “offence” first coming to the notice of the Regulator, and not to evidence to prove such offence, it is necessary to examine the provisions of the WHS Act defining the relevant offence. Section 32 of the WHS Act provides as follows:

“A person commits a Category 2 offence if –

(a)   the person has a health and safety duty, and

(b)   the person fails to comply with that duty, and

(c)   the failure exposures an individual to a risk of death or serious injury or illness.”

Evidence for the Defendant

15. The evidence in support of each Motion was the affidavit of the defendant’s solicitor Mr Dandachli dated 4 December 2023. He annexed to his affidavit a copy of a workplace hygiene monitoring report dated 20 November 2017 (the WHM report) and a copy of an Improvement Notice No. 7-328082 issued on 20 April 2018 (the Improvement Notice).

The WHM Report

16. This report is on the letterhead of SafeWork NSW and was prepared by State Inspector Mahinda Seneviratne. It was reviewed by State Inspector Michael Weller. The report is dated 20 November 2017 and reports upon an inspection of the premises of Prime Marble at Greenacre carried out on 30 August 2017. On the first page of the report (DX 1, p 5) the following summary appears:

“An occupational hygiene survey was conducted at Prime Marble & Granite Pty Ltd in Greenacre on 30^th August 2017 to measure workers’ exposure to respirable crystalline silica (RCS) dust.

Personal monitoring of seven workers showed that exposure to airborne RCS for six of these workers that day were above the regulated Australian Workplace Exposure Standard of 0.1mg/m³ (TWA-8hours).

Recommendations are made for Prime Marble & Granite Pty Ltd to reduce workers exposure to RCS dust and to improve workers awareness on the health hazards of RCS.”

17. Page 7 of the report explains the calculation of the WES for RCS exposure. It says:

“Australian Workplace Exposure Standards (WES)

The Australian Workplace Standards (WES) represents the airborne concentration of a particular substance or mixture that must not be exceeded. There are three types of exposure standard: a) 8-hour time-weighted (TWA) average; b) peak limitation; or c) short term exposure limit.

Exposure standards are based on the airborne concentrations of individual substances which, according to current knowledge, should not cause adverse health effects nor cause undue discomfort to nearly all workers. They do not represent a fine dividing line between a healthy and unhealthy work environment. Natural biological variation and the range of individual susceptibilities mean that a small number of people might experience adverse health effects below the exposure standard.

WES- TWA-8-hour

Eight hour time-weighted average exposure standards are the average airborne concentration of a particular substance that is permitted over an eight-hour working day, and a 5 day working week. These are the most common types of exposure standards. Note: 8-Hour TWA exposure standards may require adjustment where work shifts exceed 8 hours or for greater than a 5 day working week.

- from Guidance on the interpretation of Workplace exposure standards for Airborne Contaminants (SafeWork Australia, 2012).

In Australia, respirable crystalline silica (RCS) has an established WES TWA-8hr of 0.1mg/m³. Under WHS Regulation 2011, a worker must not be exposed to RCS above this level.”

18. Page 8 of the report sets out the results obtained by air sampling carried out at the Prime Marble premises. This air sampling was carried out in relation to six employees who were performing polishing, cutting and glueing. The total RCS for each of the six workers’ samples range between 0.10mg/m³ for the saw cutter (Leon) to a high of 0.75mg/m³ in the polisher (Jack). Five of the six samples were above the Australian WES of 0.1mg/m³.

19. Page 9 of the report said:

“Overall, the personal air monitoring results indicate that all workers doing polishing tasks at Prime Marble & Granite are exposed to RCS dust concentrations well above the current Australian WES. This is a regulated limit and workers may be at risk of serious health effects if not adequately protected from exposure. The amount of Quartz in each of the polishers’ samples was around 80% of the respirable dust. This suggests that the engineered stone is the source of most, if not all, of the respirable dust.”

20. Page 10 of the report stated that Prime Marble “must improve current controls to reduce airborne RCS dust concentrations and prevent exposure, particularly among workers doing polishing and/or grinding tasks”.

21. Page 11 of the report makes recommendations to ensure that no worker at Prime Marble was exposed to RCS above the Australian WES.

The Improvement Notice

22. The Improvement Notice issued by Inspector Lau, stated that it was reasonably believed that on 16 March 2018 Prime Marble was contravening s 19 of the WHS Act. It alleged that workers at Prime Marble carrying out ongoing work with engineered and natural stone were exposed to airborne RCS that could cause significant risk to the worker’s health, including the risk of silicosis.

23. The Improvement Notice required measures to be taken to remedy or prevent the contravention. It required health monitoring for crystalline silica to be carried out in accordance with Sch 14 of the WHS Regulation 2017.

Evidence for the Prosecutor

Affidavit of Inspector Seneviratne

24. Inspector Seneviratne affirmed an affidavit on 16 November 2023 (PX 1). His role at SafeWork was to provide expert advice, assistance, education and compliance services to contribute to harm reduction in workplaces and the community. In 2017 he was involved in a project entitled “Preventing Crystalline Silica Dust in the Workplace”. The project was designed to identify high risk industries and activities and provide tailored safety advice and assistance. Part of the project involved personal air monitoring of workers in factories. The purpose of this monitoring was to find the level of RCS exposure among workers fabricating stone benchtops. The workplaces were selected in a random manner. The air monitoring was not part of the investigation of any particular worker diagnosed with silicosis at Prime Marble.

25. Inspector Seneviratne carried out personal air monitoring of six workers at the Prime Marble premises at Greenacre on 30 August 2017. He was not investigating a potential contravention of the WHS Act but was researching RCS levels in the industry. He recorded the first name of each worker but did not record their full names. None of the six workers were Mr Zhang or Mr Geng.

26. Inspector Seneviratne was aware of an Improvement Notice issued by Inspector Lau on 20 April 2018. He knew that this Improvement Notice was issued in response to the recommendations in his WHM Report.

27. Inspector Seneviratne went back to the premises of Prime Marble on 7 August 2018. He was shown a “Dust Diseases Care” report of health monitoring done for two workers. Neither of the workers were Mr Zhang or Mr Geng. The inspector was not made aware of Mr Zhang or Mr Geng being workers at Prime Marble. At no stage was Inspector Seneviratne aware that Mr Zhang or Mr Geng performed work at Prime Marble. At no stage was he aware that Mr Zhang or Mr Geng had been exposed over a period of time while working for Prime Marble to high levels of RCS. Inspector Seneviratne played no role in the later investigation into the exposure of Mr Zhang and Mr Geng to RCS while working at Prime Marble.

Affidavit of Inspector Weller

28. Inspector Weller affirmed an affidavit on 16 November 2023 (PX 3).

29. On 3 February 2021 SafeWork received a NSW Ministry of Health Silicosis Notification in respect of Mr Zhang, advising that he had been diagnosed with silicosis. The notification indicated that Mr Zhang had died on 7 June 2020. Inspector Weller then sought documents from iCare, including the Industrial History and Medical Assessment Panel Certificates for Mr Zhang. These were received by SafeWork on 31 March 2021.

30. The Industrial History provided for Mr Zhang listed employment with Jackson Marble Pty Ltd between 2002 and 2009 and Prime Marble between 2013 and 2019. In both periods of employment Mr Zhang was said to have had silica dust exposure. The information in the Industrial History was provided by Mr Zhang’s wife, as Mr Zhang was already deceased. She said that while Mr Zhang had worked for Prime Marble from about 2013 onwards, he became unwell while on a holiday in China in early 2019. They returned home and he saw a respiratory specialist who advised him to leave his work in the stone industry and avoid any future exposure.

31. Under the heading “Exposure Corroboration” in the Industrial History, there was mention of two other workers at the Prime Marble factory who had applied for dust diseases compensation. They were not mentioned by name, but one applicant was said to have been awarded compensation for 45% disablement for silicosis in 2019. SafeWork later ascertained that this worker was Mr Geng.

32. The Industrial History concluded by stating that Mr Zhang had applied for dust diseases compensation during his lifetime, but passed away one month later on 17 June 2020, before an Industrial History interview could be conducted with him. Thus the information was obtained from Mr Zhang’s widow.

33. The material from iCare included a Disablement Certificate signed by three doctors dated 3 September 2020 stating that Mr Zhang was 100% disabled, commencing on 14 May 2020. This date is obviously when he first went to the Dust Diseases Authority (DDA) seeking compensation. The material also included a Death Certificate certifying that Mr Zhang died on 17 June 2020 from “scleroderma and silicosis” attributable to his exposure to the inhalation of silica dust.

34. On 7 May 2021 Inspector Weller sought information from iCare in relation to Mr Geng.

35. The information provided by iCare included an Industrial History for Mr Geng, which stated that he had worked as a stonemason between 2015 and 2018 for Prime Marble. The information in the Industrial History was provided by Mr Geng himself. He spoke of a heavy exposure cutting and drilling stone benchtops while working for Prime Marble between 2015 and 2018.

36. The material from iCare included a Disablement Certificate dated 9 May 2019, certifying a 45% level of disablement due to inhalation of dust.

Affidavit of Inspector Ball

37. Inspector Ball affirmed an affidavit on 17 November 2023 (PX 2). On 5 May 2021 the Investigation Decision-Making Panel of SafeWork approved a full investigation into Prime Marble, arising from a notification from the NSW Ministry of Health on 3 February 2021 to SafeWork regarding the diagnosis of silicosis for Mr Zhang. Inspector Ball was provided with an Industrial History and a Medical Panel Assessment Certificate for Mr Zhang, which were obtained from the iCare.

38. Inspector Ball reviewed material provided by iCare and sought further information from iCare in relation to insurance for Prime Marble. Inspector Ball also obtained material from South Sydney Local Health District in relation to Mr Zhang.

39. On 2 June 2021 Inspector Ball was allocated the investigation in relation to the matter of Mr Geng. The information included an Industrial History and a Medical Assessment Panel Certificate for Mr Geng obtained from iCare. Mr Geng was identified as a result of information contained in the industrial work history of Mr Zhang, which referred to “other workers” who also worked at Prime Marble.

40. On 10 September 2021 Inspector Ball received an email from iCare enclosing material relating to Mr Geng, including a medical report of Associate Professor McKenzie dated 25 October 2019. Inspector Ball also reviewed material provided by South Western Sydney Area Health Service in relation to Mr Geng.

41. On 21 September 2021 Inspector Ball received copies of the Death Certificate for Mr Zhang and the Death Certificate for Mr Geng.

42. Between November 2021 and July 2022 Inspector Ball took further steps to investigate the two matters. On 1 March 2022 Inspector Ball attended the premises of Prime Marble and conducted interviews with workers. Inspector Ball issued notices under the WHS Act requiring Prime Marble to provide documents and answer questions.

43. On 30 May 2022 Inspector Ball reviewed the material and formed the opinion that Prime Marble had not notified SafeWork of the iCare claim for Mr Zhang or the diagnosis of either Mr Zhang or Mr Geng.

44. On 30 June 2022 Inspector Ball formed the opinion that prior to 2019 Prime Marble had not provided fit testing of respirators or health monitoring to workers undertaking tasks relating to cutting, polishing or shaping engineered stone. Inspector Ball formed the view that neither Mr Zhang or Mr Geng had been the subject of health monitoring reports or fit test reports prepared by Prime Marble.

45. In July or August 2022 Inspector Ball formed the opinion that:

“The two workers, Mr Zhang and Mr Geng, were very likely to have been exposed over a period of time while working for Prime Marble and Granite Pty Ltd to high levels of respirable crystalline silica dust during work tasks, that could have caused the adverse health effects on their lungs.”

46. On 5 August 2022 Inspector Ball formed the opinion that sufficient evidence had been gathered that Prime Marble had contravened its duty pursuant to s 19(1) of the WHS Act, in relation to Mr Zhang and Mr Geng.

47. Section 232(1)(a) does not focus upon when the Regulator had sufficient evidence to prosecute. It asks when the Regulator became aware of the offence. Thus the evidence of Inspector Ball is not directly relevant to the present issue, except to demonstrate that the various facts discovered by Inspector Ball were not known to SafeWork prior to 31 March 2021.

Consideration

48. The prosecutor bears the onus of proving each of the three elements of a s 32 offence beyond a reasonable doubt. As to the first element, it was not in dispute between the parties that Prime Marble had a health and safety duty, as defined in the WHS Act, to its employees. Section 30 of the WHS Act provides as follows:

“In this Division, ‘health and safety duty’ means a duty imposed under Division 2, 3 or 4 of this Part.”

49. Thus the reference to a “health and safety duty” in s 32 is a reference to a duty imposed, inter alia, by s 19(1) of the WHS Act which provides as follows:

“A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of –

(a)   workers engaged, or caused to be engaged by the person, and

(b)   workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.”

50. The third essential element of a s 32 offence requires the prosecutor to prove beyond a reasonable doubt that “the failure exposes an individual to a risk of death or serious injury or illness”. In the case of the two summonses under consideration, the individuals said to have been exposed to a risk of death or serious injury were Mr Zhang and Mr Geng. The evidence shows that the Regulator was not even aware of the existence of either Mr Zhang or Mr Geng prior to the receipt on 3 February 2021 of a NSW Ministry of Health Silicosis Notification in respect of Mr Zhang. The Notification indicated that Mr Zhang had died on 7 June 2020. This Notification did not mention Mr Geng.

51. The Notification did not draw a connection between Mr Zhang’s illness and death, and his employment with Prime Marble. Inspector Weller did not become aware of that connection until he received the Industrial History for Mr Zhang from iCare on 31 March 2021. That Industrial History not only disclosed that Mr Zhang had been employed by Prime Marble in an occupation where he was exposed to silica dust, but also stated:

“Based on the available information it would seem reasonable to conclude Mr Zhang was exposed to silica dust as a consequence of his work fabricating artificial stone bench tops during these years. Many other workers in this industry have claimed heavy exposure as a consequence of poor industrial hygiene practices and inadequate personal protective equipment.”

52. The material obtained by Inspector Weller on 31 March 2021 included the assessment certificates provided by iCare which showed that Mr Zhang had died on 17 June 2020 as a result of silicosis attributable to his exposure to the inhalation of dust.

53. It was not until this material was received that the Regulator became aware of the following:

1. Mr Zhang had been employed between 2013 and 2019 by Prime Marble.

2. Mr Zhang had been exposed in that employment to a risk of death or serious injury or illness as a result of his exposure to silica dust.

3. It was a reasonable conclusion that his exposure to silica dust during his employment with Prime Marble was due to poor industrial hygiene practices and inadequate personal protective equipment i.e. failures on the part of Prime Marble.

54. I find that it was not until this material was obtained by Inspector Weller from iCare that the Regulator had notice of the commission of the offence. Inspector Ball continued enquiries on behalf of SafeWork after Inspector Weller received that material. Inspector Ball was investigating the matter with a view to determining whether or not to bring a prosecution. Inspector Ball was gathering evidence which could be used in a prosecution. It was not necessary, as at 30 March 2021, for SafeWork to have sufficient evidence to launch a prosecution. Section 232 speaks not of having the evidence to prosecute an offence, but of having notice of the offence. Such notice was not available until the iCare documents were received by Inspector Weller on 31 March 2021.

55. The same reasoning applies to the offence involving Mr Geng. Mr Geng was not named in the Industrial History of Mr Zhang. However, there was oblique reference to another worker with a 45% level of disablement. Inspector Weller did not receive iCare documentation regarding Mr Geng until it was sent by email on 17 May 2021. When that material was received the Regulator became aware of the three elements of the offence required under s 32 of the WHS Act. It then knew that Mr Geng had been exposed to a risk of death or serious injury, and that such exposure had been caused by the failure of Prime Marble to comply with its health and safety duty when it employed Mr Geng in work involving exposure to silica dust.

56. Senior Counsel for the defendant submitted that when SafeWork had the report of Inspector Seneviratne in 2017, which disclosed that on one day on which air monitoring was carried out in relation to six workers employed by Prime Marble, that meant that it had notice of the commission of the offence which is the subject of each Summons. I reject that submission. The air monitoring on one particular day, which showed exposure above the WES, did disclose an offence to the Regulator. However it was an offence under the WHS Regulation 2017 of failure to comply with the exposure standard. The present proceedings do not charge Prime Marble with that offence, and indeed would be out of time to do so.

57. Silicosis is an accumulative disease. Silica particles enter the lung and cause scarring and fibrosis. This makes it more and more difficult to breath. Silicosis can be caused by heavy exposure over a short period or low to moderate exposure over a lengthy period of years. Exposure on one day will not cause silicosis. This is recognised in both Summonses, which specifically refer to exposure to RCS “over an extended period”.

58. It was not until the iCare material was received by Inspector Weller in 2021, that the Regulator was aware, not only that Mr Zhang and Mr Geng had developed silicosis, but that they had developed it as a result of significant exposure over a lengthy period during their employment with Prime Marble.

59. The report of Inspector Seneviratne in 2017 and the Improvement Notice issued by Inspector Lau in 2018, did not inform the Regulator of the commission of the two offences charged, which specifically relate to Mr Zhang and Mr Geng, and which specifically relate to those two workers developing silicosis as the result of long term exposure to silica dust.

60. Senior Counsel for the defendant submitted that an offence first comes to the notice of the Regulator “when it has such information as to give reasonable grounds for a belief that the offence has been committed”, citing Witheyman v Van Riet [2008] QCA 168. The information obtained in 2017 and 2018 gave the Regulator no information concerning an offence exposing either Mr Zhang or Mr Geng to the risk of death or serious injury as a result of a failure by Prime Marble to comply with a work health and safety duty.

61. Air monitoring tests carried out on one day in 2017 did not give the Regulator notice, either in respect of Mr Zhang and Mr Geng, or indeed in relation to the six workers the subject of the testing, that the exposure standard was being breached on a long term basis, sufficient to expose any worker to the risk of silicosis. It would be different if SafeWork had followed up the air monitoring testing at regular intervals, which might have informed it that appropriate precautions were not being taken in the long term, rather than just on the day of the testing. Indeed, it is unfortunate that those matters were not pursued.

62. I find that the two summonses have been filed within the time prescribed by s 232 of the WHS Act. The defendant’s Motions fail. I have already made an order on 2 February 2024 reserving the costs of the Notice of Motion. This matter can be dealt with at the conclusion of the proceedings, but I indicate that I can see no present reason why costs of the Motion should not be paid by the defendant.

Orders

63. In each matter the orders are:

1. Dismiss the defendant’s Notice of Motion filed on 4 December 2023.

2. The exhibits are returned.

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Amendments

13 February 2024 - No amendment made

Decision last updated: 13 February 2024