Citation: SafeWork NSW v Poletti Corporation Pty Ltd [2019] NSWDC 491
Court: District Court of New South Wales
Date: 13 September 2019
Judge: Scotting DCJ
Background
The defendant, Poletti Corporation Pty Ltd, was a subcontractor responsible for designing, installing and operating a jumpform screen system at a residential apartment construction site in Parramatta. The system consisted of mesh screens providing perimeter edge protection around the building during construction. The defendant was also contracted to perform the formwork for the project.
On 22 February 2016, a worker, Mr Posa, was painting the exterior of the building when he fell approximately six metres through a gap (described as "the void") between the architectural profile of the building's south-eastern facade and the edge of the work platform. The void resulted from the interaction between the building's design and the placement of the work platform. Mr Posa suffered serious injuries.
SafeWork NSW prosecuted the defendant under section 32 of the Work Health and Safety Act 2011 (WHS Act), alleging that as a person conducting a business or undertaking (a PCBU), the defendant had failed to comply with its health and safety duty and thereby exposed Mr Posa to a risk of death or serious injury. An alternative charge under section 19(2) of the Act was also pressed, covering duties owed to persons other than workers in the PCBU's own workforce.
Legal Issues
- Whether Mr Posa was a "worker at work in the business or undertaking" of the defendant for the purposes of section 19(1) of the WHS Act (Element 2 of the primary charge)
- Whether the defendant failed to comply with its health and safety duty by failing to take the specific steps particularised in the summonses (Element 3)
- Whether the defendant's breach of duty exposed Mr Posa to a risk of death or serious injury, including whether the required causal relationship was established (Element 4)
Decision
On Element 2, the court was required to determine whether Mr Posa fell within the class of persons to whom the section 19(1) duty was owed. Given that the defendant also admitted the equivalent elements of the alternative section 19(2) charge, the court proceeded to assess the common elements.
On Element 3, the court found beyond reasonable doubt that the defendant had breached its duty. The defendant failed to identify the hazard posed by the void, failed to cover it with a permanent extension to the work platform or a hinged flap, failed to prevent access to the platform until the void was made safe, and failed to arrange for the installation of static lines enabling workers to use harnesses. The defendant's obligations arose from its contractual responsibility for the design and operation of the system, as well as applicable Australian Standards and WHS legislation.
On Element 4 (causation), the court found beyond reasonable doubt that the defendant's failures caused Mr Posa's exposure to the risk of death or serious injury. Notably, the court rejected the argument that causation was severed by the intervening act of an unidentified worker placing an unsecured piece of plywood over the void. The defendant's failure to address the void created the very conditions in which workers would resort to improvised measures, and that chain of causation remained intact. The court also held that Karimbla's (the principal contractor's) failure to identify the void and direct remedial action was not relevant to the defendant's own duty, by operation of section 16 of the WHS Act, which provides that duties are not transferable.
The court found the defendant guilty on all elements of the offence.
Orders Made
• The defendant is found guilty of the offence
Key Takeaways
- The District Court confirmed that a PCBU's duty under the WHS Act is non-delegable and cannot be discharged by pointing to failures of a principal contractor to identify hazards or direct remedial work.
- An intervening act, such as an unknown worker placing unsecured plywood over an unguarded void, does not automatically sever the causal chain between a defendant's breach and the resulting risk of injury, particularly where the breach itself created the circumstances that made the improvised response foreseeable.
- Under section 16 of the WHS Act, concurrent or overlapping duties held by other parties (including a principal contractor) do not diminish or transfer responsibility away from the duty holder whose breach is in question.
- A subcontractor responsible for designing and operating a jumpform screen system at a construction site carries a duty to identify void hazards arising from the interaction between the building's architectural design and its own installed system, not only hazards inherent in the system itself.
- Contractual provisions requiring compliance with Australian Standards and WHS legislation were treated as part of the context establishing the scope of the defendant's obligations, though the criminal liability arose independently from the statutory duty.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 16, 19(1), 19(2), 32
- Work Health and Safety Regulation 2013 (NSW)
- Occupational Health and Safety Act 2000 (NSW)
Cases
- Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92
- Bulga Underground Operations v Nash [2016] NSWCCA 37
- Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467
- Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209
- Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50
- Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676
- Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267
- Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
- R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321
- Royall v The Queen (1991) 172 CLR 378
- SafeWork New South Wales v Rawson Homes Pty Ltd [2016] NSWDC 237