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District Court 23 April 2018

Safe Work NSW v Wagga Motors Pty Ltd

[2018] NSWDC 242

Other
CRIMINAL LAW WORK HEALTH AND SAFETY ELEMENTS OF THE CHARGE PROCEDURAL INTENT OF LEGISLATORS CONTENT OF ELEMENTS OF CHARGE STATUTORY PROVISION

Citation: Safe Work NSW v Wagga Motors Pty Ltd [2018] NSWDC 242
Court: District Court of New South Wales
Date: 23 April 2018
Judge: Scotting DCJ

Background

The defendant, a motor vehicle repair business, was engaged to repair a horse float truck owned by a horse stud operator. The repairs included fixing an oil leak in the hydraulic tailgate system. The defendant returned the truck without testing the tailgate operation, despite the hydraulic oil level having become low during the repair process.

Several days after the truck was returned, a worker at the horse stud was required to weld a ladder to the truck and then remove interior partitions. To do so, he needed to operate the tailgate. He was later found deceased, trapped beneath the tailgate, which had apparently fallen on him.

Safe Work NSW charged the defendant under section 32 of the Work Health and Safety Act 2011 (NSW) (the Act) with failing to comply with a health and safety duty under section 19(2), thereby exposing the deceased worker to a risk of death or serious injury. The defendant applied to dismiss or permanently stay the charge, arguing that the deceased was not an "other person" within the meaning of section 19(2) because the risk materialised off the defendant's premises and after the truck had left the defendant's control.

  • Whether the deceased worker qualified as an "other person" within the meaning of section 19(2) of the Act, thereby bringing him within the scope of the defendant's health and safety duty as a person conducting a business or undertaking (PCBU).
  • Whether the duty in section 19(2) extends to persons who are exposed to a risk created by the PCBU's work, but who are located off-site and exposed to that risk after the work is completed and the relevant item has left the PCBU's premises.
  • How section 19(2) should be construed in light of the Act's objects, structure, and extrinsic materials, and how causation operates as an element of the offence.

Decision

The court began with statutory construction principles, emphasising that meaning must be derived from the language used in context, having regard to the purpose and policy of the provision. Extrinsic materials can assist construction but cannot override the text. The court also noted that, under section 33 of the Interpretation Act 1987, a construction that promotes the purpose of the Act is to be preferred.

On the scope of section 19(2), the court found that the phrase "from work carried out as part of the conduct of the business or undertaking" describes the source of the risk rather than confining the duty to risks that arise only at the defendant's workplace or only while the work is being performed. The risk to the deceased was created when the defendant carried out the incomplete repair and returned the truck without testing the tailgate. That risk was not extinguished simply because it was only realised days later and at a different location.

The court rejected the defendant's submission that "other persons" under section 19(2) refers only to persons present at the PCBU's workplace. Reading the Act as a whole, including sections 20 to 26 and the objects in section 3, the court observed that the Act expressly protects "workers and other persons" from risks "arising from work," which is language broader than risks arising only at a particular workplace. The duty under section 19(2) is, however, not unlimited: the class of persons protected is bounded by their proximity to the risk created by the work, not by geography in the narrow sense.

The court also addressed causation, confirming it is an element of the offence that must be proved to the criminal standard. The PCBU's act or omission must be a significant or substantial cause of the person being exposed to the risk. The court noted that geographical and temporal distance between the work and the eventual exposure may be relevant to causation in an appropriate case, but those considerations did not defeat the charge at this preliminary stage. The court concluded that the deceased was an "other person" within section 19(2), and indicated it would consider whether to state a question of law to the Court of Criminal Appeal before making final orders.

Orders Made

• The court deferred making orders to allow the parties to consider if the question of law should be stated to the Court of Criminal Appeal.

Key Takeaways

  • The District Court held that the duty owed by a PCBU to "other persons" under section 19(2) of the Work Health and Safety Act 2011 is not confined to persons present at the PCBU's workplace at the time the work is performed. The duty extends to persons who are later exposed to a risk created by that work.
  • The phrase "from work carried out as part of the conduct of the business or undertaking" in section 19(2) identifies the source of the risk, not a geographical or temporal limit on the class of protected persons.
  • A person who is neither a worker engaged by the PCBU nor present on the PCBU's premises may still fall within the category of "other persons" if they are exposed to a risk generated by the PCBU's work, provided a causal link exists between that work and the exposure.
  • Causation is an element of a section 32 offence and must be proved to the criminal standard. The PCBU's act or omission must be a significant or substantial cause of the exposure to risk. Geographical and temporal factors are relevant to that assessment and may, in an appropriate case, limit criminal liability.
  • Under section 33 of the Interpretation Act 1987, a construction of a WHS Act provision that promotes the Act's object of protecting workers and other persons from risks arising from work is to be preferred over a narrower reading.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 7, 14, 15, 16, 19(1), 19(2), 19(3), 20, 21, 22, 23, 24, 25, 26, 28, 29, 32
- Interpretation Act 1987 (NSW), ss 33, 34
- Occupational Health and Safety Act 1983 (NSW), s 16
- Occupational Health and Safety Act 2000 (NSW), s 8

Cases
- Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27
- Boland v Safe is Safe Pty Ltd and Munro [2017] SAIRC 17
- Bulga Underground Operations v Nash [2016] NSWCCA 37
- Certain Lloyd's Underwriters v Cross (2012) 87 ALJR 131
- Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
- R v Board of Trustees of the Science Museum (1993) 1 WLR 1171
- Re Bolton; Ex Parte Beane (1987) 162 CLR 514
- Royall v The Queen (1991) 172 CLR 378
- S Kidman & Co Ltd v Dr John Lowndes CM and Director of Public Prosecutions (NT) [2016] NTCA 5
- SafeWork New South Wales v Rawson Homes Pty Ltd [2016] NSWDC 237
- Taylor v Owners of Strata Plan 11564 (2014) 253 CLR 531
- Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94