Citation: SafeWork NSW v Investa Asset Management Pty Ltd [2019] NSWDC 76
Court: District Court of New South Wales
Date: 25 March 2019
Judge(s): Scotting DCJ
Background
The defendant, a property asset manager, managed a commercial building at 20 Bridge Street, Sydney on behalf of its owners. As part of that role, it had responsibility for a building maintenance unit (BMU), a suspended working platform used to access the building's exterior for tasks including window cleaning. The BMU had been commissioned at the building around 2000 and was serviced throughout the relevant period by an independent specialist contractor, Building Maintenance Unit Services Pty Ltd (BMUS).
On 20 October 2015, two workers were using the BMU to clean windows when it fell approximately 12 storeys, landing on the building's awning. Both workers were seriously injured. The fall occurred because a machined stud connecting the cradle to one of the winches fractured due to metal fatigue. The sudden transfer of load to the opposite side then caused that stud to fracture as well, separating the cradle from all safety mechanisms.
Investigations revealed the BMU was overdue for a mandatory 10-year major inspection under the relevant Australian Standards. The defendant had been notified of that overdue inspection by BMUS on 2 April 2015, approximately six months before the incident, but had not arranged for it to be carried out. SafeWork NSW prosecuted the defendant under the Work Health and Safety Act 2011 (the Act) for failing to comply with its health and safety duty, thereby exposing the workers to a risk of death or serious injury.
Legal Issues
- Whether the defendant failed to comply with its health and safety duty under section 19(1) of the Act by not taking the steps particularised in the prosecution's summons, principally by failing to arrange the overdue major inspection of the BMU (Element 3).
- Whether that failure exposed the two workers to a risk of death or serious injury under section 32 of the Act (Element 4), including whether the causal connection between the defendant's failures and the risk was established beyond reasonable doubt.
- Whether the defendant's reliance on its specialist contractor, BMUS, was reasonable in the circumstances such that it could discharge its duty by deferring to that contractor's expertise.
Decision
The defendant admitted that the prosecution had established that it owed a health and safety duty and that it had management or control of the workplace (Elements 1 and 2). The contested issues were whether it had failed in that duty and whether that failure caused the relevant risk.
On Element 3, the court found the prosecution established beyond reasonable doubt that the defendant had failed to comply with its duty. The defendant had received written notice in April 2015 that the BMU was overdue for a major inspection. Despite this, it did not arrange the inspection before the incident. The court rejected the argument that reliance on BMUS as a specialist contractor was sufficient to discharge the duty. While reliance on a specialist can be reasonable, the defendant had been specifically and directly told of the need for the inspection and took no adequate steps in response.
On Element 4, the court accepted expert evidence from Dr Casey that fatigue cracking in the right-hand stud would have been visible to the naked eye in the 18 months prior to the incident. The court also accepted evidence from multiple witnesses that it would have been standard practice at a major inspection to replace the studs as a matter of course, regardless of their apparent condition, without the need for non-destructive testing. Had the major inspection been carried out, the defective stud would have been identified and replaced, and the incident would not have occurred.
The court was satisfied beyond reasonable doubt that a causal relationship existed between the defendant's failures and the risk to which the workers were exposed. The defendant was found guilty of the offence under section 32 by way of breach of section 19(1) of the Act. No findings were required on the alternative charge under section 20, as it was pleaded in the alternative only.
Orders Made
• The defendant is found guilty of the section 32 offence by breach of section 19(1) of the Act
• The matter is listed for a sentence hearing at a date convenient to the parties
The judgment notes the matter was to be listed for a sentence hearing at a date convenient to the parties.
Key Takeaways
- The District Court confirmed that a duty holder cannot discharge a health and safety duty under the Work Health and Safety Act 2011 simply by retaining a specialist contractor, particularly where the duty holder has received direct and specific written notice of a safety-related requirement that was not acted upon.
- Under section 32 of the Act, causation requires proof that the defendant's failure exposed workers to a risk of death or serious injury. Here, expert evidence that defects would have been detected and remedied had the required inspection occurred was sufficient to establish that causal link beyond reasonable doubt.
- A conviction under section 32 for breach of section 19(1) does not require proof that the harm was inevitable or that a specific failure mechanism was foreseeable in precise detail. It is enough that the failure exposed workers to a relevant risk.
- Where an independent contractor's service reports contain specific recommendations about mandatory inspections, those reports can form the basis of the duty holder's knowledge of the risk, even if the duty holder has otherwise delegated maintenance responsibilities.
- The 10-year major inspection requirement under AS 2550.13-1997 and AS 2550.1-2011 was treated by the court as a meaningful safety obligation. Non-compliance with an overdue mandatory inspection, after being notified, carried significant weight in establishing breach.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 20, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Occupational Health and Safety Act 2000 (NSW)
- AS 2550.13-1997 and AS 2550.1-2011 (Australian Standards for cranes, hoists and winches)
Cases
- Baiada Poultry Pty Ltd v R (2012) 246 CLR 92
- Bulga Underground Operations v Nash [2016] NSWCCA 37
- Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
- Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304
- Houghton v Arms (2006) 225 CLR 553
- Royall v The Queen (1991) 172 CLR 378
- Mahmood v Western Australia (2008) 232 CLR 427
- R v Board of Trustees of the Science Museum [1993] 1 WLR 1171
- Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55
- Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316
- Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45
- Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267
- Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197
- Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467
- Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99
- Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
- Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015