Citation: SafeWork NSW v K & R Fabrications (W'Gong) Pty Limited [2019] NSWDC 238
Court: District Court of New South Wales
Date: 7 June 2019
Judge: Russell SC DCJ
Background
The defendant, a fabrication company, was engaged to carry out an overhaul of a large industrial gearbox at a cement mill in Maldon, NSW. On 23 January 2016, three workers employed in connection with the defendant's business were reinstalling four intermediate bearing housings as part of that overhaul. During the task, an unrestrained bearing housing weighing 1.3 tonnes fell and landed on one of the workers, causing him serious injuries.
SafeWork NSW prosecuted the defendant for a Category 2 offence under the Work Health and Safety Act 2011 (NSW). The prosecution alleged that the defendant, as a person conducting a business or undertaking, failed to comply with its health and safety duty and that this failure exposed the three workers to a risk of death or serious injury.
The defendant pleaded not guilty. The trial ran for seven days and turned on whether the defendant owed the relevant statutory duty, whether it breached that duty, and whether the breach exposed the workers to the requisite level of risk.
Legal Issues
- Whether the defendant owed a health and safety duty under section 19(1) of the Work Health and Safety Act 2011 (NSW) to the three workers involved
- Whether the defendant failed to comply with that duty by not taking the steps particularised in the prosecution's amended summons
- Whether the defendant's failure to comply with its duty exposed one or more of the workers to a risk of death or serious injury, satisfying the elements of a Category 2 offence under section 32 of the Act
- What the defendant knew, or ought reasonably to have known, about the relevant hazard and available ways to eliminate or minimise it (assessed on an objective standard)
Decision
The court found all three elements of the Category 2 offence proved beyond reasonable doubt. It held that the defendant was a person conducting a business or undertaking and that the three workers were workers within the meaning of section 7(1) of the Act, engaging the duty in section 19(1).
On the question of breach, the court found that the defendant failed to take the steps particularised in the amended summons, including failing to ensure that the bearing housing was restrained before the backing plates were removed and failing to have in place a Safe Work Method Statement (SWMS) or Job Safety Analysis (JSA) for the task being performed. These omissions constituted a failure to provide and maintain a safe system of work.
The court applied the objective standard of "reasonably practicable" set out in section 18 of the Act, noting that the relevant state of knowledge is that possessed by persons generally engaged in the relevant field, not merely what the specific defendant actually knew. On that basis, the defendant ought reasonably to have known about the hazard and the available control measures.
The court also clarified that proof of an actual injury is not an element of the offence. What the prosecution must establish is the creation of a risk of death or serious injury. The injury that occurred was treated as evidence of the presence of that risk, and the court was careful to focus on the general class of risk rather than only the specific incident.
Orders Made
- The elements of the offence set out in the Amended Summons filed on 10 April 2019 were proved beyond reasonable doubt.
- K & R Fabrications (W'Gong) Pty Ltd was found guilty of the offence.
- The matter was listed for a sentencing hearing on a date convenient to the parties.
Key Takeaways
- The District Court confirmed that under section 16 of the Work Health and Safety Act 2011 (NSW), more than one person can concurrently hold the same health and safety duty, and each duty holder must comply to the standard required by the Act regardless of what others do.
- Under section 32 of the Act, a Category 2 offence does not require proof that a worker was actually injured; the prosecution need only establish that the defendant's failure to comply with its duty created a risk of death or serious injury.
- The "reasonably practicable" standard in section 18 is assessed objectively, by reference to the knowledge held by persons generally engaged in the relevant field of activity, not by reference to what the specific defendant actually knew.
- Paying too close attention to the precise mechanism of a specific incident can lead to error in identifying the relevant risk; the analysis must focus on the general class of risk, consistent with the Court of Appeal's approach in Tangerine Confectionery.
- Where a task involves heavy unrestrained plant components, the absence of a SWMS or JSA and the failure to physically restrain those components can together constitute a failure to maintain a safe system of work, satisfying the breach element of the offence.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 7, 12A, 16, 17, 18, 19, 32
- Occupational Health and Safety Act 2004 (Vic)
- Occupational Health, Safety and Welfare Act 1986 (SA)
Cases:
- Baiada Poultry Pty Limited v The Queen [2012] HCA 14; (2012) 246 CLR 92
- Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313
- Genner Constructions Pty Limited v WorkCover Authority of NSW [2001] NSWIR Comm 267
- Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
- Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378
- Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316
- Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304
- Smith v Broken Hill Pty Ltd [1957] HCA 34; (1957) 97 CLR 337
- Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015
- WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453