Citation: SafeWork NSW v Grasso Consulting Engineers Pty Ltd; SafeWork NSW v Ignazio Grasso [2019] NSWDC 792
Court: District Court of New South Wales
Date: 18 December 2019
Judge: Scotting DCJ
Background
A structural engineering company, Grasso Consulting Engineers Pty Ltd (GCE), and its sole director, Ignazio Grasso, faced prosecution under the Work Health and Safety Act 2011 (NSW) following a partial roof collapse at the Sydney Entertainment Centre during its demolition in March 2016. GCE had been engaged by the licensed demolition contractor, Hassarati, to provide structural engineering advice on the safe demolition of the venue's complex steel roof structure. A subcontractor, Rosenlund, was engaged to carry out the physical demolition using a long-reach 70-tonne excavator.
On 19 March 2016, while demolishing Bay 5 of the roof, a main truss unexpectedly buckled and collapsed onto the cabin of the excavator. The excavator operator escaped by kicking out a window and was physically unhurt. His spotter had, at various points during the relevant period, stood on the arena floor in close proximity to the excavator.
SafeWork NSW alleged that GCE's engineering advice led to the roof being demolished in a sequence that created a risk of unplanned structural collapse. The prosecution further alleged that Mr Grasso, as the company's sole director and the engineer providing services through it, failed to exercise the due diligence required of him under the Act.
Legal Issues
- Whether GCE failed to comply with its health and safety duty under section 19(2) of the Work Health and Safety Act 2011 by failing to take the steps particularised in the amended summons (Element 3).
- Whether GCE's breach of duty exposed the two workers to a risk of death or serious injury (Element 4).
- Whether Mr Grasso failed to exercise due diligence to ensure GCE complied with its duty, within the meaning of section 27 of the Act (Element C).
- Whether Mr Grasso's failure exposed the workers to a risk of death or serious injury (Element D).
- Whether GCE's advice, rather than on-site decisions made by others, was a significant or substantial cause of the workers being exposed to that risk.
Decision
Both GCE and Mr Grasso had conceded the first two elements of their respective charges: that GCE had a relevant health and safety duty and that GCE was the type of entity capable of holding it, and similarly that Mr Grasso was an officer of GCE. The contested issues were whether each defendant had breached their duty and whether that breach exposed the workers to a risk of death or serious injury.
The court found that GCE's engineering advice was deficient in a critical respect: it failed to give adequate direction on the order in which the bays of the roof structure should be demolished, and in particular failed to advise that Bay 5, or the ancillary fixtures beneath it, should be addressed as a priority. The evidence established that this omission, rather than a significant departure from GCE's advice on site, was the operative cause of the dangerous situation. Because the primary and secondary trusses (T5 and T6) had no upward restraint at their bearings, the accumulated load from the remaining structure and ancillary fixtures in Bay 5 caused lateral torsional buckling and the unplanned collapse.
GCE's principal defence was that the demolition had not in fact followed its advice, and that the prosecution's expert witnesses had not been asked to opine on what would have happened if GCE's advice had been followed. The court rejected this argument. It found the prosecution had proved beyond reasonable doubt that GCE's advice, given in breach of its section 19(2) duty, was a significant or substantial cause of the workers' exposure to the risk. The court separately found that the approach taken in demolishing Bays 7 and 9 did not represent a significant departure from GCE's advice, because GCE had given no express advice on how those bays were to be demolished.
Mr Grasso's defence mirrored GCE's. The court found him guilty on the same reasoning, holding that his failure to take reasonable steps to ensure GCE's advice was properly considered was itself a significant or substantial cause of the workers being exposed to the risk of unplanned structural collapse.
Orders Made
No orders were made in this decision.
Key Takeaways
- A structural engineering consultant retained to advise on safe demolition sequencing held a health and safety duty under section 19(2) of the Work Health and Safety Act 2011, and inadequate advice about the order of demolition could constitute a breach of that duty.
- Under section 27 of the Act, an officer's obligation to exercise due diligence extends to ensuring that the company's technical advice is properly considered and adequate; the sole director and engineer providing services through the company was not insulated from personal liability.
- Where a defendant argues that third parties departed from its advice in a way that broke any causal chain, the court will examine whether any such departure was itself significant and whether the original advice was sufficient to prevent the risk materialising.
- The causation standard applied by the District Court required proof that the breach was a "significant or substantial" cause of the workers' exposure to risk; it was not necessary to show the breach was the sole or dominant cause.
- Conceding the foundational elements of a work health and safety charge does not preclude a contested hearing on breach and causation, but the court will scrutinise whether the prosecution's expert evidence addresses all live factual alternatives raised by the defence.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(2), 27, 32
- Work Health and Safety Regulation 2015 (NSW), cl 293
- Corporations Act 2001 (Cth)
- Criminal Appeal Act 1912 (NSW)
- 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 JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50
- Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55
- Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313
- 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
- Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
- Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
- R v Board of Trustees of the Science Museum [1993] 1 WLR 1171
- R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321
- R v Lavin [2019] QCA 109
- R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332
- Royall v The Queen (1991) 172 CLR 378
- 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
- Smith v Broken Hill Pty Ltd (1957) 97 CLR 337
- Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015
- Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94