Citation: SafeWork NSW v The Austral Brick Co Pty Limited [2018] NSWDC 387
Court: District Court of New South Wales
Date: 11 December 2018
Judge: Scotting DCJ
Background
A brick and paver manufacturer engaged a specialist roof plumbing contractor (Allied Plumbing Pty Ltd) to repair a leaking box gutter on the roof of its Horsley Park manufacturing plant. The roof was partly constructed of brittle asbestos cement sheeting and was in a poor state of repair, particularly near the kilns and dryers. Warning signs on the roof directed workers to use planks or ladders and to walk only along screw lines above the underlying purlins.
On 30 January 2015, a plumber employed by Allied fell through the roof sheeting from a height of approximately 6.5 metres onto a concrete floor and died from his injuries. Two other Allied workers were also on the roof at the time.
SafeWork NSW prosecuted the manufacturer under section 32 of the Work Health and Safety Act 2011, alleging it had failed to comply with its primary health and safety duty under section 19(1) and thereby exposed the three workers to a risk of death or serious injury. The manufacturer pleaded not guilty.
Legal Issues
- Whether the manufacturer failed to comply with its health and safety duty by failing to take the specific measures particularised in the prosecution's summons (Element 3 of the offence)
- Whether any such failure exposed the workers to a risk of death or serious injury (Element 4)
- Whether the four particularised measures (providing safety mesh, a catch platform, a job safety and environmental analysis (JSEA) addressing the specific risk of falling through the roof, and ceasing work) were each "reasonably practicable"
- Whether reliance on a specialist contractor with relevant expertise and experience could satisfy the duty holder's obligations
- Whether the prosecution shifted its case from the particulars pleaded, and what consequences that carried
Decision
Element 3: Failure to comply with the duty
The prosecution particularised four measures the manufacturer allegedly should have taken: (a) ensuring safety mesh was installed under the roof; (b) ensuring a catch platform was erected; (c) ensuring a JSEA was completed that addressed the risk of falling through the roof; and (d) ceasing the work. The court examined each in turn.
On the JSEA, the court found that Allied had completed a JSEA covering work at heights. The prosecution's real complaint appeared to be that it did not specifically address the risk of falling through the roof surface itself, a different risk from falling off the roof edge. The court observed, however, that the manufacturer had no objective knowledge that this specific risk was not addressed in the JSEA Allied completed. The manufacturer was entitled to rely on Allied, a specialist contractor with decades of experience in roof plumbing and prior work on this very roof, to identify and address the relevant risks in its own JSEA.
On the question of ceasing work, the court found the prosecution had not established beyond reasonable doubt that this was reasonably practicable. The manufacturer was entitled to rely on Allied's expertise, and there was no evidence of any objective indication that work should have stopped entirely.
On safety mesh and the catch platform, the court found the evidence insufficient to establish that either was reasonably practicable. The prosecution's expert had not inspected the plant, the evidence about whether mesh or a platform could be installed in the relevant areas was based on limited and anecdotal observations, and the court was not satisfied to the required standard that either measure could feasibly have been implemented.
Element 4: Exposure to risk
Having found Element 3 was not established, the court did not need to determine Element 4. However, the court observed that had particulars (a) or (b) (safety mesh and catch platform) been established, those failures would not have exposed the workers to the risk, because knowledge of the relevant conditions lay with Allied rather than the manufacturer. Had particulars (c) or (d) been established, however, the court indicated it would have been satisfied that exposure to the risk was made out.
Overall conclusion
The prosecution failed to prove all elements of the offence beyond reasonable doubt. The court declined to enter final orders immediately, noting the prosecution's right to consider an appeal under section 5AE of the Criminal Appeal Act 1912, and listed the matter for a further hearing on 4 February 2019.
Orders Made
• The matter is listed on 4 February 2019 to determine the appropriate course pending the prosecution's consideration of an application pursuant to section 5AE Criminal Appeal Act 1912
Key Takeaways
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A prosecution under section 32 of the Work Health and Safety Act 2011 requires the prosecution to prove beyond reasonable doubt both that the defendant failed to comply with its duty by not taking each particularised measure, and that the failure exposed workers to a risk of death or serious injury.
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The District Court confirmed that a duty holder's reliance on a specialist contractor can be relevant to what was "reasonably practicable," particularly where the contractor has extensive relevant expertise, prior experience with the specific site, and had itself undertaken inductions and completed safety documentation.
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The concept of "objective knowledge" was central to the reasoning: the manufacturer was assessed against what it knew or ought reasonably to have known, not against matters that were within the specialist contractor's knowledge and not communicated to the manufacturer.
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Where a prosecution particularises specific safety measures as those the defendant should have taken, it must establish beyond reasonable doubt that each measure was reasonably practicable. Vague or anecdotal evidence from an expert who had not inspected the site was insufficient to meet that standard for the catch platform and safety mesh particulars.
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A prosecution summons that appears to shift the case beyond its pleaded particulars during hearing risks prejudice to the defendant, and courts will hold the prosecution to the case as particularised.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety Regulation 2013 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5AE
- Occupational Health and Safety Act 2000 (NSW)
Cases
- Baiada Poultry Pty Ltd v R (2012) 246 CLR 92
- Bulga Underground Operations v Nash [2016] NSWCCA 37
- Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467
- Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55
- Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267
- John Holland Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338
- Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
- Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45
- R v Board of Trustees of the Science Museum [1993] 1 WLR 1171
- Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316
- Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304
- Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94