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District Court 16 December 2015

WorkCover Authority of NSW (Inspector Moore) v E & T Bricklaying Pty Ltd

[2015] NSWDC 369

Other
WHETHER DEFENDANT FAILED IN THAT DUTY

Citation: WorkCover Authority of NSW (Inspector Moore) v E & T Bricklaying Pty Ltd [2015] NSWDC 369
Court: District Court of NSW
Date: 16 December 2015
Judge: Kearns DCJ

Background

A worker suffered an electric shock on 26 April 2012 at a construction site in Hammondville, NSW, while inserting vertical steel reinforcing bars into a besser block wall. He was standing on an external scaffold when one of the bars came into contact with a low-voltage overhead power cable, causing the shock.

The bricklaying company (E & T Bricklaying Pty Ltd) had been contracted by the head contractor to lay the besser blocks. An officer of the company was present on site and directed the worker to carry out the task. The scaffold had been erected by a separate scaffolding contractor.

Both E & T and its officer (Mr Kose) were charged with breaching section 32 of the Work Health and Safety Act 2011 (the Act), which criminalises a failure to comply with a health and safety duty under the Act where that failure exposes a person to a risk of death or serious injury.

Legal Issues

  • Whether Mr Rahimi was a worker engaged by E & T within the meaning of section 19(1)(a) of the Act
  • Whether Mr Rahimi was "at work in the business or undertaking" of E & T when performing the vertical bar insertion task
  • Whether E & T failed to comply with its health and safety duty under section 19(1) of the Act
  • Whether those failures exposed Mr Rahimi to a risk of death or serious injury
  • Whether Mr Kose, as an officer of E & T, failed to exercise due diligence under section 27 of the Act to ensure E & T's compliance

Decision

Issue 1: Worker status

The court accepted that Mr Rahimi was a sole trader (as pleaded in the particulars of the charge) and that he was therefore a worker engaged by E & T within the meaning of section 19(1)(a) of the Act (at [41]). The court found the duty of care was accordingly owed to him.

Issue 2: Whether Mr Rahimi was "at work in the business or undertaking" of E & T

This was the central contested issue. Inserting vertical reinforcing bars was not ordinarily part of E & T's bricklaying contract, and the court accepted evidence that it was normally a task for a concreter or builder (at [17]-[18]). However, the court concluded that Mr Rahimi was nonetheless "at work in the business or undertaking" of E & T at the relevant time. The task was performed on the same scaffold used for E & T's work, using the same type of metal material already handled on that scaffold, pursuant to a direction from E & T's officer Mr Kose, and in circumstances where the work was integral to the broader construction project in which E & T was participating (at [47]-[48]).

The court accepted Mr Rahimi's evidence that it was Mr Kose who directed him to do the work and who handed the bars up to him on the scaffold. The court rejected suggestions that Mr Dagher, the head contractor's representative, had directed Mr Rahimi or passed him the bars (at [35]-[37]).

Issue 3: Breach of the health and safety duty

The court found that the scaffold was within 4 metres of the overhead power lines, satisfying a key element of the breach. No direct measurement had been taken; the court applied Pythagoras's Theorem to available measurements, calculating the diagonal clearance between the scaffold and the nearest power line to be less than 4 metres (at [71]-[73]). The court noted the failure to simply measure the distance as "most unsatisfactory" (at [60]).

The court found further that E & T had not conducted an adequate risk assessment, had not implemented control measures (such as physical barriers, an observer, or tiger tails), had not ensured the scaffold was at a safe distance from the power lines, and had a Safe Work Method Statement that did not address the nearby power lines at all (at [54], [74]). No training or instruction was provided to workers about the hazard (at [75]).

Issue 4: Risk of death or serious injury, and the officer's liability

The court found that the multiple failures exposed Mr Rahimi to a risk of death or serious injury, and that each of the particularised measures, if implemented, would have significantly reduced or eliminated that risk (at [76]). As an officer of E & T, Mr Kose was subject to the due diligence duty under section 27 of the Act and had failed to exercise it in each respect particularised (at [78], [80]). Both defendants were convicted accordingly.

Orders Made

  • E & T Bricklaying Pty Ltd found guilty of the offence charged and convicted
  • Mr Kose found guilty of the offence charged and convicted
  • Matters listed for sentence hearing on 24 February 2016

Key Takeaways

  • A worker performing a task outside the strict scope of a subcontractor's contractual duties may still be "at work in the business or undertaking" of that subcontractor under section 19(1) of the Work Health and Safety Act 2011, where the work is performed on the subcontractor's equipment, at the direction of the subcontractor's officer, and in connection with the broader project in which the subcontractor is engaged (at [47]-[48]).

  • The District Court applied Pythagoras's Theorem to calculate the diagonal distance between a scaffold and overhead power lines where no direct measurement had been taken, finding the diagonal clearance was less than the required 4 metre exclusion zone. The absence of a straightforward physical measurement was criticised as "most unsatisfactory" (at [60], [71]-[73]).

  • Under section 27 of the Act, an officer's liability tracks the company's breach: where E & T was found to have failed its section 19(1) duty across multiple particulars, Mr Kose's conviction followed from his failure to exercise due diligence to ensure compliance with each of those particulars (at [78]-[80]).

  • Failures across several layers of safety controls, including the absence of a risk assessment, no control measures, no physical barriers, no observer, no tiger tails, and a Safe Work Method Statement silent on nearby power lines, collectively established that a person was exposed to a risk of death or serious injury for the purposes of section 32 of the Act (at [54], [74]-[76]).

  • Where credibility was in dispute, the court carefully assessed witness reliability in context, including language barriers and litigation inexperience, and was not satisfied that imprecise or non-committal answers necessarily amounted to positive agreement with propositions put in cross-examination (at [27]).

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011

Cases
- Bowker v DP World Melbourne Limited [2014] FWCFB 9227
- Corrado Rech v Nomel Pty Ltd [1998] NSWIRComm 463
- WorkCover Authority of New South Wales v CSR Limited [1995] NSWIRComm 294