Citation: Poletti Corporation Pty Ltd v SafeWork NSW [2020] NSWCCA 243
Court: NSW Court of Criminal Appeal
Date: 25 September 2020
Judges: Macfarlan JA (with Fullerton J and Button J agreeing)
Background
Poletti Corporation Pty Ltd was a subcontractor engaged by the principal contractor at a multi-storey construction site in Parramatta. Poletti's scope of work included the design, installation, and operation of a jumpform screen system, which provided edge protection for workers around the building's perimeter. Under the subcontract, Poletti acknowledged control over all aspects of the subcontracted works and safety issues at the site, and expressly agreed to ensure there would be no holes in the jumpform perimeter decking through which a person could fall more than one floor.
On 22 February 2016, a painter employed by a separate subcontractor fell six metres through a void between the building's exterior and the edge of a work platform attached to the jumpform screen system. He suffered serious injuries. The void existed at four of the five levels of the screen system; only the lowest level had hinged plywood flaps covering it.
SafeWork NSW prosecuted Poletti for a Category 2 offence under the Work Health and Safety Act 2011 (NSW), alleging Poletti had failed to comply with its primary duty of care under section 19(2), thereby exposing the painter to a risk of death or serious injury. Following a ten-day trial, the District Court convicted Poletti. Poletti appealed to the Court of Criminal Appeal on two grounds of law.
Legal Issues
- Whether the primary judge erred in his consideration of the scope of Poletti's duty under section 19(2) of the WHS Act, particularly in assessing the reasonable practicability of Poletti taking the specific steps alleged against it.
- Whether the primary judge erred in his application of section 16 of the WHS Act, which provides that more than one person can concurrently hold the same duty, and that the existence of another duty-holder's concurrent duty does not reduce each duty-holder's own obligations.
Decision
The Court of Criminal Appeal dismissed both grounds of appeal. Because an appeal under section 5AA(1) of the Criminal Appeal Act 1912 (NSW) is an appeal in the strict sense, Poletti was required to identify an error of law or a misapplication of principle in the primary judge's fact-finding exercise. Poletti did not challenge any of the primary judge's extensive factual findings and confined its challenge entirely to questions of law.
On the first ground, Poletti argued the primary judge failed to properly assess whether it was reasonably practicable for Poletti specifically to have taken the steps identified in the prosecution's particulars, as required by the High Court's guidance in Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92 and Kirk v Industrial Court (NSW) (2010) 239 CLR 531. The Court of Criminal Appeal found no such error. The primary judge had methodically addressed each particular, considered the specific steps alleged, and assessed whether each was reasonably practicable for Poletti to have taken given its actual capacity and control over the system.
On the second ground, Poletti contended the primary judge failed adequately to consider the significance of the concurrent duties owed by the principal contractor and the painter's employer when determining whether Poletti was also obliged to ensure the use of static lines (one of the particular steps alleged). The Court rejected this. The primary judge had referred to section 16 in the immediately preceding paragraphs of his judgment and plainly understood that a concurrent duty held by another party does not relieve each duty-holder of its own obligations. The decisive question was whether Poletti had the practical capacity to make arrangements with the principal contractor to install static lines, and the primary judge determined that it did.
The Court also rejected a further contention raised in oral argument, that the conviction was defective because the summons described the offence date as 22 February 2016 when the final jump of the system had been completed some days earlier. The Court found that any breach arising from failing to restrict worker access until the system was safe remained operative on the date of the accident, and the primary judge had in any event rejected Poletti's argument that it had ceded control over the finishing screens after handover to the principal contractor.
Orders Made
- Poletti's appeal dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that an appeal under section 5AA(1) of the Criminal Appeal Act 1912 (NSW) is a strict appeal: it can only succeed by identifying an error of law or a misapplication of principle, not by re-agitating factual findings.
- A subcontractor that has contractually assumed control over the design, installation, and operation of a safety system at a worksite can hold a primary duty of care under section 19(2) of the WHS Act in relation to workers who are not its own employees.
- Under section 16 of the WHS Act, the existence of a concurrent safety duty held by another party (such as a principal contractor or an employer) does not reduce or displace each individual duty-holder's obligation to comply with its own duty to the standard required by the Act.
- The reasonable practicability assessment under section 18 of the WHS Act requires examination of the specific steps alleged against the specific duty-holder concerned, having regard to that party's actual capacity and control, not a generalised inquiry divorced from those particulars.
- No error was established merely because another duty-holder may have been better placed to implement a particular safety measure; the question remains whether the duty-holder in question had sufficient capacity to influence or control the relevant matter.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 16, 17, 18, 19, 32
- Criminal Appeal Act 1912 (NSW), s 5AA(1)
Cases
- Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14
- Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1
- Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37