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District Court 31 March 2016

Safe Work NSW v Wollongong Glass P/L

[2016] NSWDC 58

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS DUTY OF EMPLOYERS RISK OF DEATH OR SERIOUS INJURY

Citation: Safe Work NSW v Wollongong Glass P/L [2016] NSWDC 58
Court: District Court of New South Wales
Date: 31 March 2016
Judge: Judge AC Scotting

Background

The defendant, a glass manufacturing company, was prosecuted under section 32 of the Work Health and Safety Act 2011 (NSW) following the death of one of its employees. The employee was fatally injured at the defendant's factory on 6 March 2013 when a stack of large glass sheets fell on him, causing fatal head injuries.

At the time of the incident, the deceased and a co-worker were manually leaning heavy glass sheets (each approximately 80kg and over two metres tall) forward on a storage trolley to access a sheet stored behind them. The procedure involved the deceased supporting the leaning sheets with his hands while the co-worker retrieved the required piece. The weight became too great for the deceased to hold, and the sheets fell.

Toxicology evidence showed the deceased had cannabis in his system at a level that a consultant pharmacologist testified significantly impaired his perceptions, judgement, decision-making, vigilance, and reaction times. The prosecution alleged the defendant had failed to comply with its health and safety duty by not taking certain specified steps, exposing the deceased to a risk of death or serious injury.

  • Whether the defendant failed to comply with its health and safety duty under section 19(1) of the Work Health and Safety Act 2011 by not taking the steps particularised in the prosecution's summons (Element 3 of the offence).
  • Whether any such failure exposed the deceased to a risk of death or serious injury within the meaning of section 32 of the Act (Element 4).
  • Procedurally, whether certain questions of law should be referred to the Court of Criminal Appeal under section 5AE of the Criminal Appeal Act 1912.

Decision

The defendant conceded Elements 1 and 2, namely that it was conducting a business and owed a health and safety duty to its workers. The contested issues were whether the defendant had actually breached that duty and, if so, whether that breach exposed the deceased to a relevant risk.

Judge Scotting found the defendant had taken appropriate steps to eliminate or minimise the risk of crush injury from handling large and heavy glass sheets. Specifically, the court found the deceased had been trained not to manually handle glass sheets that were too large or too heavy, and to remain clear of the fall zone. Those measures satisfied the standard of reasonable practicability on the evidence presented.

The court found the deceased had not adhered to that training on the day of the incident. He acted contrary to the instructions of his more experienced co-worker, engaged in a procedure that offered minimal time savings, and behaved irrationally. The court attributed this to his significant impairment from cannabis. Because no breach of duty by the defendant was established, the court was also unable to be satisfied beyond reasonable doubt that the defendant's conduct had exposed the deceased to the relevant risk.

The prosecution elected not to pursue a referral of questions of law to the Court of Criminal Appeal after judgment was delivered, and no amendment application was pressed.

Orders Made

  • The defendant was found not guilty.
  • The summons was dismissed.
  • The prosecution was ordered to pay the defendant's costs as agreed or assessed on the ordinary basis.

Key Takeaways

  • A defendant's compliance with its WHS duty is assessed against the standard of "reasonably practicable," which requires weighing the likelihood and degree of harm, the defendant's objective knowledge of the risk, and the availability and cost of risk-reduction measures.
  • Under the Work Health and Safety Act 2011, the prosecution bears the onus of proving beyond reasonable doubt that it was reasonably practicable for the defendant to have taken steps to eliminate or minimise the identified risk, not merely that an injury occurred.
  • Where a defendant has provided adequate training instructing workers to avoid the precise conduct that caused a fatal incident, that training may be sufficient to discharge the "reasonably practicable" duty, even where the outcome was fatal.
  • The court drew a clear distinction between the specific mechanism of an incident and the general class of risk that the duty analysis must address, consistent with the approach in Tangerine Confectionery Ltd v R [2011] EWCA Crim 2015.
  • A worker's uncharacteristic and irrational departure from training, found to have been caused by drug impairment, was treated as a factor negating the causal link between the employer's conduct and the relevant risk.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 12A, 18, 19, 32, 244
- Work Health and Safety Regulation 2011 (NSW), cl 5
- Occupational Health and Safety Act 2000 (NSW), s 8(2)
- Criminal Appeal Act 1912 (NSW), s 5AE

Cases
- Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
- Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304
- 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
- Baiada Poultry Pty Ltd v R (2012) 246 CLR 92
- Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267
- WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166
- Bulga Underground Operations v Nash [2016] NSWCCA 37
- Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316
- Royall v The Queen (1991) 172 CLR 378
- Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209