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District Court 20 September 2018

SafeWork NSW v KD & JT Westbrook Pty Ltd

[2018] NSWDC 255

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

Citation: SafeWork NSW v KD & JT Westbrook Pty Ltd [2018] NSWDC 255
Court: District Court of New South Wales
Date: 20 September 2018
Judge: Scotting DCJ

Background

The defendant company operated a large sheep and cattle station in far north-west New South Wales, approximately 100 kilometres west of Tibooburra. The day-to-day management of the property was handled by a contract manager, who in turn engaged contract musterers to carry out mustering work on motorcycles.

One of those musterers, a 27-year-old experienced contractor, fell from his motorcycle on 22 September 2014 while working in one of the station's paddocks. He was not wearing an approved motorcycle helmet. He sustained fatal head and spinal injuries.

SafeWork NSW prosecuted the defendant company under section 32 of the Work Health and Safety Act 2011 (NSW), alleging it had failed to discharge its duty as a person conducting a business or undertaking (PCBU) under section 19(1) of that Act by failing to require the worker to wear a helmet while riding motorcycles during mustering work.

  • Whether the prosecution was required to prove every fact pleaded in the summons beyond reasonable doubt, or only the elements of the offence and essential intermediate facts
  • Whether the offence, charged as occurring on 22 September 2014, could be established by reference to conduct and omissions predating that day
  • Whether the duty under section 19(1) extended to a specialist subcontractor engaged through the company's contract manager
  • Whether the relevant risk was objectively known and obvious to the defendant before the incident
  • Whether requiring helmet-wearing during mustering was reasonably practicable
  • Whether the worker was chasing a dingo in the course of his duties at the time of the incident, or was riding recklessly for his own enjoyment
  • Whether causation is an element of the offence under section 32, and whether the worker's conduct severed the causal chain

Decision

Standard of proof and pleadings. The court rejected the defendant's argument that the prosecution must prove every fact pleaded in the summons to the criminal standard. Following Shepherd v The Queen (1990) 170 CLR 573, only the elements of the offence and essential intermediate facts in the reasoning towards guilt need be established beyond reasonable doubt. The court also noted that section 20 of the Criminal Procedure Act 1986 prevents a defendant from objecting to a variance between the pleading and the evidence adduced.

The duty and its scope. The court was satisfied that the worker was a "worker" engaged in the defendant's business or undertaking within the meaning of section 19(1). The fact that the contract manager was an intermediary between the defendant and the musterers did not sever the defendant's duty. The defendant retained sufficient direction and control over the work, including supplying motorcycles and setting the parameters of the mustering contract.

Known and obvious risk; reasonable practicability. The court found the risk of serious injury or death from riding motorcycles without a helmet was objectively obvious and knowable by the defendant before the incident. There was nothing to suggest that requiring helmet use would have been impracticable on a working station. The court rejected the argument that mustering speeds of 30 to 40 kilometres per hour were too slow to create a material risk, noting that dingo chasing involved higher speeds and was within the scope of the mustering work.

Causation and the worker's conduct. The court found the worker was chasing a dingo at the time of the fall, consistent with his duties, and was not riding recklessly for personal enjoyment. A dingo was observed near the incident site shortly after the fall. The court was not satisfied the worker's conduct broke the chain of causation. Even had some degree of informal "skylarking" occurred, the court noted this was something the defendant knew workers sometimes did, placing it within the scope of the duty. Causation was established to the criminal standard, and the defendant was found guilty.

Orders Made

  • The defendant was found guilty of the offence.
  • The matter was listed for a sentence hearing at a date convenient to the parties.
  • The court indicated it intended to consider making an adverse publicity order under section 236 of the Work Health and Safety Act 2011, and directed both parties to be in a position to adduce evidence on the content, medium, likely reach, and costs of any such publication.

Key Takeaways

  • A conviction under section 32 of the Work Health and Safety Act 2011 (NSW) does not require the prosecution to prove every pleaded fact beyond reasonable doubt, only the elements of the offence and essential intermediate facts necessary to support the reasoning towards guilt.
  • Under section 19(1) of the Act, a PCBU's duty of care can extend to contract workers engaged through an intermediary contractor where the PCBU retains meaningful direction and control over the work and its conditions.
  • The District Court confirmed that the risk of serious injury or death from motorcycle riding without a helmet was objectively obvious and knowable, and that requiring helmet use was reasonably practicable even in a remote rural mustering context.
  • A worker's own carelessness or informal conduct does not automatically sever the chain of causation under the WHS Act, particularly where the employer or PCBU is aware that such conduct occurs in practice.
  • Adverse publicity orders under section 236 of the Act are a live sentencing consideration and require evidence from both parties about the content, medium, reach, and costs of any proposed publication.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32, 236
- Criminal Procedure Act 1986 (NSW), s 20
- Occupational Health and Safety Act 2000 (NSW)

Cases
- Shepherd v The Queen (1990) 170 CLR 573
- Baiada Poultry Pty Ltd v R (2012) 246 CLR 92
- Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
- Bulga Underground Operations v Nash [2016] NSWCCA 37
- Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45
- Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55
- R v Board of Trustees of the Science Museum [1993] 1 WLR 1171
- Bowler v Hilda Pty Ltd (1998) 80 FCR 191
- Archer v Simon Transport Pty Ltd [2016] QCA 168
- Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117