SafeWork NSW v Tolputt - [2017] NSWDC 285

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Tolputt [2017] NSWDC 285
Hearing dates: 1 September 2017
Date of orders: 01 September 2017
Decision date: 01 September 2017
Jurisdiction: Criminal
Before: KEARNS DCJ
Decision:
The defendant is convicted and fined the sum of $20,000 with a moiety to the prosecutor. The defendant is to pay the prosecutor’s costs as may be agreed or assessed.

Catchwords: CRIMINAL LAW – work health and safety – worker’s duty not to adversely affect the health and safety of other persons – defendant a self-employed tree climbing contractor – method prepared by BTS for removing tree that had fallen onto house – method not capable of implementation – defendant utilised another method without discussion with BTS – other workers on roof of house – exposure to risk of being struck by tree parts and risk of fall from roof – aggravating and mitigating factors – relief under Fines Act
Legislation Cited: Work Health and Safety Act 2011; Crimes (Sentencing Procedure) Act 1999; Fines Act 1996
Cases Cited: Bulga Underground Operations v Nash [2016] NSWCCA 37
Texts Cited: Amenity Tree Industry Code of Practice – WorkCover, August 1998; Managing the Risk of Falls at Workplaces Code of Practice – Safe Work Australia, January 2012; Work Health and Safety Consultation, Co-operation and Co-ordination Code of Practice, WorkCover NSW, December 2011; National Code of Practice for the Prevention of Falls in Housing Construction - SafeWork Australia, April 2010
Category: Sentence
Parties: SafeWork NSW (prosecutor); Jeremi Scott Tolputt (defendant)
Representation:
Counsel: Mr B Docking appeared for the prosecutor; Ms K Conte-Mills appeared for the defendant
Solicitors: SafeWork Legal Services (prosecutor); Macarthur Law Group (defendant)

File Number(s): 2016/335054

Judgment

The charge and the plea

Jeremi Scott Tolputt, the defendant, is charged with a breach of s 32 of the Work Health and Safety Act 2011 (the Act) in that on 1 June 2015 at 73 Cape Three Points Road, Avoca Beach (the property), he failed to comply with a duty under s 28(b). The duty was owed to several persons, being Benjamin Martin, Jessie Powell, James Amson, Adam Hanscombe, Blake Currie and Michael Bell. The defendant has pleaded guilty.

The legislation

Section 28(b) provides:

While at work, a worker must:
…
(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons …

The defendant was a worker within the meaning of the section.
Section 32 relevantly provides:

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 exposes an individual to a risk of death or serious injury or illness.

The maximum penalty applicable in this case is $150,000. I pause here to note that Mr Docking, who appeared for the prosecutor, drew my attention to the fact that s 32 provides for two categories where an offence is committed by an individual. One…

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 Tolputt

Details

AGLC: SafeWork NSW v Tolputt [2017] NSWDC 285
Case: [2017] NSWDC 285
Decision Date: 01 September 2017

CaseChat Overview and Summary

The case of SafeWork NSW v Tolputt involved the defendant, a self-employed tree climbing contractor, who was charged with breaching workplace health and safety laws. The specific issue arose when the defendant was tasked with removing a tree that had fallen onto a house. The method for tree removal prepared by the Building and Technical Services (BTS) was deemed not capable of implementation, but the defendant proceeded with a different method without consulting BTS. This action exposed other workers on the roof to significant risks, including the possibility of being struck by tree parts and the risk of falling from the roof. The case was brought before the court to determine whether the defendant had contravened the statutory duty not to adversely affect the health and safety of other persons.

The legal issues before the court included whether the defendant's actions constituted a breach of workplace health and safety regulations and, if so, the appropriate penalty to impose under the relevant legislation. The court had to consider whether the defendant's failure to follow the prescribed method and his subsequent actions without consulting BTS amounted to a breach of his duty to ensure the safety of other workers. Additionally, the court examined the aggravating and mitigating factors to determine an appropriate penalty.

In delivering the judgment, the court found that the defendant had indeed breached the workplace health and safety laws. The court emphasised the importance of adhering to safety protocols, particularly in hazardous environments. The decision highlighted the need for self-employed contractors to communicate and coordinate with relevant authorities to ensure safety standards are met. The court considered the aggravating factor of the risk posed to other workers and the mitigating factor of the defendant's lack of prior convictions. The court ultimately imposed a fine of $20,000, with half to be paid to the prosecutor, and ordered the defendant to pay the prosecutor’s costs as may be agreed or assessed.

The final orders of the court were that the defendant was convicted and fined the sum of $20,000, with half of this amount to be paid to the prosecutor. The defendant was also ordered to pay the prosecutor’s costs as may be agreed or assessed. This decision underscores the importance of compliance with workplace health and safety regulations and the consequences of failing to adhere to prescribed safety protocols.

Orders

Orders of the court

The defendant is convicted and fined the sum of $20,000 with a moiety to the prosecutor. The defendant is to pay the prosecutor’s costs as may be agreed or assessed.

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 Tolputt [2017] NSWDC 285
Hearing dates:	1 September 2017
Date of orders:	01 September 2017
Decision date:	01 September 2017
Jurisdiction:	Criminal
Before:	KEARNS DCJ
Decision:	The defendant is convicted and fined the sum of $20,000 with a moiety to the prosecutor. The defendant is to pay the prosecutor’s costs as may be agreed or assessed.
Catchwords:	CRIMINAL LAW – work health and safety – worker’s duty not to adversely affect the health and safety of other persons – defendant a self-employed tree climbing contractor – method prepared by BTS for removing tree that had fallen onto house – method not capable of implementation – defendant utilised another method without discussion with BTS – other workers on roof of house – exposure to risk of being struck by tree parts and risk of fall from roof – aggravating and mitigating factors – relief under Fines Act
Legislation Cited:	Work Health and Safety Act 2011; Crimes (Sentencing Procedure) Act 1999; Fines Act 1996
Cases Cited:	Bulga Underground Operations v Nash [2016] NSWCCA 37
Texts Cited:	Amenity Tree Industry Code of Practice – WorkCover, August 1998; Managing the Risk of Falls at Workplaces Code of Practice – Safe Work Australia, January 2012; Work Health and Safety Consultation, Co-operation and Co-ordination Code of Practice, WorkCover NSW, December 2011; National Code of Practice for the Prevention of Falls in Housing Construction - SafeWork Australia, April 2010
Category:	Sentence
Parties:	SafeWork NSW (prosecutor); Jeremi Scott Tolputt (defendant)
Representation:	Counsel: Mr B Docking appeared for the prosecutor; Ms K Conte-Mills appeared for the defendant Solicitors: SafeWork Legal Services (prosecutor); Macarthur Law Group (defendant)
File Number(s):	2016/335054