Citation: SafeWork NSW v Assign Blue Pty Ltd [2020] NSWDC 756
Court: District Court of New South Wales
Date: 7 December 2020
Judge: Scotting DCJ
Background
A labour hire company, Assign Blue Pty Ltd, supplied workers to a sheet metal manufacturer in Rydalmere, NSW. On 31 August 2017, one of those workers, Mr William, suffered a partial amputation of three fingers on his right hand while operating a 40-tonne press at the manufacturer's premises. Mr William had not previously operated that machine and had received only brief instruction from the host employer's supervisor on the day of the incident.
The press was fitted with adjustable finger guards, but photographs taken on the day showed that the guards as configured did not prevent a worker from reaching the working parts of the machine. Mr William could not recall how the incident occurred and there were no witnesses.
SafeWork NSW prosecuted Assign Blue under section 32 of the Work Health and Safety Act 2011, alleging the company failed to comply with its primary health and safety duty under section 19(1) and thereby exposed Mr William to a risk of death or serious injury. The company pleaded not guilty, and the trial turned on whether it had failed to take adequate steps to discharge its duty and whether a defence of honest and reasonable mistake of fact was available.
Legal Issues
- Whether Assign Blue failed to comply with its health and safety duty under section 19(1) of the Work Health and Safety Act 2011 by not taking the steps alleged in the prosecution summons (Element 3 of the offence)
- Whether any such failure exposed Mr William to a risk of death or serious injury (Element 4 of the offence)
- Whether the defence of honest and reasonable mistake of fact was established, specifically relating to what the company's business manager was told by the host employer's operations manager about the nature of the work being performed
- How section 16(3) of the Act (which addresses overlapping duties) interacts with the standard of duty under section 19(1)
Decision
The District Court found that Assign Blue admitted the first two elements of the offence. On the question of how section 16(3) operates, Scotting DCJ held that it informs the standard by which a breach of duty is assessed, rather than modifying the duty itself.
On the question of breach and exposure to risk, the court found the prosecution failed to prove all elements of the offence beyond reasonable doubt. The judgment records that this conclusion was reached after analysing whether the company took adequate steps and whether its conduct met the required standard given what it knew or should have known.
On the honest and reasonable mistake of fact defence, the court applied section 244 of the Act, which provides that the knowledge and conduct of employees and officers can be attributed to the defendant company. Under that provision, the business manager's honest belief in what she was told by the host employer's operations manager was treated as the company's belief. However, the court found that belief was not a reasonable mistake of fact. This was because the company possessed additional information, including knowledge that its workers were in fact operating machines on the factory floor, which it failed to incorporate into its overall assessment. The company's own systems did not alert it to the discrepancy between what its business manager was told and what was actually occurring.
Notwithstanding this finding on the mistake of fact defence, the court concluded that the prosecution had not proved all elements of the offence beyond reasonable doubt, and Assign Blue was accordingly not convicted.
Orders Made
No orders were made in this decision.
Key Takeaways
- The District Court confirmed that section 16(3) of the Work Health and Safety Act 2011, which addresses overlapping duties between multiple duty-holders, informs the standard of duty rather than modifying or limiting the duty itself.
- Under section 244 of the Work Health and Safety Act 2011, a company's knowledge is not confined to what any single officer or employee knows: the knowledge of consultants, managers, and workers can be aggregated and attributed to the company as a whole when assessing its state of mind.
- A defendant company relying on honest and reasonable mistake of fact must demonstrate that the mistaken belief was reasonable in light of all information known to the company, not merely in light of what one representative was told by a third party.
- Labour hire companies operating as the employer of record retain a health and safety duty under section 19(1) in respect of placed workers, even where the host employer has accepted contractual responsibility for day-to-day supervision, training, and the safety of plant.
- Despite the court rejecting the honest and reasonable mistake of fact defence, Assign Blue was acquitted because the prosecution failed to establish all elements of the offence beyond reasonable doubt.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 16, 18, 19, 32, 244
- Work Health and Safety Regulations 2011 (NSW)
- Occupational Health and Safety Act 2000 (NSW)
Cases:
- Baiada Poultry Pty Ltd v R (2012) 246 CLR 92
- Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
- He Kaw Teh v R (1985) 157 CLR 523
- Proudman v Dayman (1941) 67 CLR 536
- Bulga Underground Operations v Nash [2016] NSWCCA 37
- Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45
- Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676
- Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50
- Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
- Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99
- Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209
- Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467
- 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