Citation: SafeWork NSW v Cosentino Australia Pty Limited [2018] NSWDC 47
Court: District Court of New South Wales
Date: 9 March 2018
Judge: Judge D. Russell
Background
Cosentino Australia Pty Limited is a supplier of stone slabs. On 11 November 2014, a truck driver employed by a transport company, Mr Orkzai, was delivering a load of heavy stone slabs on behalf of the defendant to premises at Prestons in south-western Sydney. While unloading the slabs at the delivery site, nine slabs stacked on one side of an A-frame on the truck tray toppled onto him, causing serious injuries. The opposite side of the A-frame was empty at the time.
SafeWork NSW prosecuted the defendant for a Category 2 offence under s 32 of the Work Health and Safety Act 2011 (NSW). The charge alleged that the defendant, as a person conducting a business or undertaking, failed to comply with its health and safety duty under s 19(1) of the Act, and that this failure exposed Mr Orkzai to a risk of death or serious injury.
The defendant pleaded not guilty. The trial required the court to determine, as a matter of law and fact, whether all three elements of the offence were established beyond reasonable doubt.
Legal Issues
- Whether the defendant owed Mr Orkzai a health and safety duty under s 19(1) of the Work Health and Safety Act 2011, given that he was employed by a transport company rather than by the defendant directly
- Whether the defendant failed to comply with that duty in the specific ways particularised in the amended summons
- Whether the defendant's failure to comply exposed Mr Orkzai to a risk of death or serious injury
Decision
Element 1: Did the defendant owe Mr Orkzai a duty?
The court found that Mr Orkzai was a "worker" within the meaning of s 7 of the Act, which extends the definition beyond direct employees to include contractors and their employees whose work activities are influenced or directed by the person conducting the business or undertaking. The court was satisfied that the defendant's engagement of the transport contractor, and the nature of the loading and delivery arrangements, brought Mr Orkzai within the scope of the defendant's duty under s 19(1).
Element 2: Did the defendant fail to comply with its duty?
The court accepted that the defendant had failed to implement a safe loading system. In particular, the slabs were loaded unevenly, with nine slabs on one side of the A-frame and none on the other, creating an inherently unstable and unbalanced load. The court found that the defendant's own loading plan contemplated balanced loading, and that there was no adequate system in place to ensure drivers were trained and instructed on safe loading and unloading. These failures were established beyond reasonable doubt.
Element 3: Did the failure expose Mr Orkzai to a risk of death or serious injury?
The court confirmed the established principle that the prosecution need not prove an actual injury occurred, only that the failure created a risk of death or serious injury. The court found the unbalanced load created that risk at multiple points, including when the load was first unstrapped at an earlier stop, during transit, and at the delivery site. The defendant's argument that contributions by other parties broke the causal connection was rejected as legally irrelevant. The court was satisfied beyond reasonable doubt that the defendant's failure was a substantial and significant cause of the risk.
Orders Made
- The elements of the offence set out in the Amended Summons filed on 6 November 2017 were found proved beyond reasonable doubt.
- Cosentino Australia Pty Limited was found guilty of the offence.
- The matter was listed for a sentence hearing on a date convenient to the parties.
Key Takeaways
- Under the Work Health and Safety Act 2011, the definition of "worker" in s 7 is broad enough to capture employees of contractors and subcontractors, not just a business's own employees, provided their work activities are influenced or directed by the duty holder.
- A person conducting a business or undertaking can owe concurrent health and safety duties alongside other parties, such as a transport contractor, and each duty holder remains independently responsible to the extent of their capacity to influence and control the relevant matter.
- A Category 2 offence under s 32 does not require proof that injury actually occurred; establishing that the failure created a risk of death or serious injury is sufficient for conviction.
- The state of knowledge applied when assessing "reasonably practicable" is objective, measured against what persons generally in the relevant field of activity would know, rather than what the specific defendant actually knew.
- The District Court confirmed that potential contributions to a risk by other parties do not negate a defendant's liability where the defendant's own failures independently constituted a substantial and significant cause of that risk.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 7, 12A, 16, 17, 18, 19, 32, 244
- Interpretation Act 1987 (NSW)
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
- Baiada Poultry Pty Ltd v R (2012) 246 CLR 92
- Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94
- Bulga Underground Operations v Nash [2016] NSWCCA 37
- Royall v The Queen (1991) 172 CLR 378
- Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316
- Genner Constructions Pty Limited v WorkCover Authority of NSW [2001] NSWIR Comm 267
- WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453
- Smith v Broken Hill Pty Ltd (1957) 97 CLR 337
- R v ACR Roofing Pty Limited (2004) 11 VR 187
- Re The Licensing Ordinance (1968) 13 FLR 143