Citation: SafeWork NSW v H D Projects Pty Ltd [2020] NSWDC 765
Court: District Court of New South Wales
Date: 17 December 2020
Judge: Scotting DCJ
Background
The defendant, a panel installation contractor, was engaged by a principal contractor to install AFS Logicwall panels at a residential construction site in Kellyville. The principal contractor separately engaged a crane company to provide crane and dogman services, and a scaffolding contractor whose employees were working on the ground level of the site. The crane company's services were used to lift packs of panels from the ground to the first floor level.
On 15 December 2017, a labour hire worker employed by the defendant attached a pack of approximately 15 panels to a specialised pallet hook used to connect loads to the crane. That worker was not a qualified dogman. He inserted the hook's tynes into the second-from-bottom panel rather than the bottom panel. When the crane lifted and swung the load over two scaffolding workers nearby, the bottom panel broke free from the plastic wrapping securing the pack and fell, striking both workers. One suffered injuries to his shoulder, knee and cheek; the other was taken to hospital for observation.
SafeWork NSW prosecuted the defendant under s 32 of the Work Health and Safety Act 2011 (the Act), alleging that it failed to comply with its health and safety duty under s 19(2) of the Act, and that this failure exposed the two injured workers to a risk of death or serious injury.
Legal Issues
- Whether the crane lifting work was carried out "as part of the conduct of" the defendant's business or undertaking under s 19(2) of the Act.
- Whether the injured scaffolding workers qualified as "workers" within the meaning of s 19(1), given that the crane work was part of a business or undertaking operated by multiple entities.
- Whether the defendant failed to comply with its health and safety duty by failing to take the steps pleaded by the prosecutor.
- Whether the defendant's breach of duty exposed the injured workers to a risk of death or serious injury under s 32 of the Act.
Decision
The court found that the cranage work was carried out as part of the conduct of the defendant's business or undertaking. Although Arise had agreed to provide cranage under the contract, the defendant used the crane to perform its own installation work and directed how and where loads were to be landed. The crane work was therefore sufficiently connected to the defendant's business.
On the question of who qualified as "workers," the court held that the scaffolding employees were workers engaged in work that was part of a business or undertaking operated in part by the defendant. The multi-party nature of the site did not negate the defendant's duty: each contractor operating on site shared responsibility for the safety of those affected by its work.
The court was satisfied beyond reasonable doubt that the defendant breached its duty in five distinct respects. The defendant failed to ensure Arise established an exclusion zone to keep other workers clear of the crane's operation. It failed to provide the crane company with the pallet hook instruction manual or the manufacturer's safe work method statement, documents that could have prompted implementation of required safety measures. It also failed to ensure a qualified dogman attached loads to the pallet hook, failed to adequately train and supervise the unqualified labour hire worker who performed that task, and failed to implement and enforce its own safe work method statement.
The court was equally satisfied that each of those breaches was a significant and substantial cause of the failure to put in place controls that would have minimised the risk of loads falling. The breach of duty exposed the two workers to a risk of death or serious injury. The court found the defendant guilty of the offence.
Orders Made
• The defendant is found guilty of the offence.
Key Takeaways
- The District Court confirmed that a subcontractor can bear a health and safety duty under s 19(2) of the Work Health and Safety Act 2011 in respect of crane operations it did not directly control, where that work was sufficiently connected to its own installation activities.
- Where a worker attaches loads to lifting equipment without holding the required qualifications, that failure can ground a breach of duty by the engaging contractor, even where the worker is sourced through a labour hire firm.
- A contractor's failure to share manufacturer-provided safety documentation with other parties on site (here, the crane operator) can independently constitute a breach of the health and safety duty.
- Under s 32 of the Act, establishing exposure to "a risk of death or serious injury" does not require proof that injury was certain or even likely; it requires that each breach was a significant or substantial cause of the relevant risk materialising.
- The existence of contractual arrangements allocating responsibility for cranage to the principal contractor did not extinguish the defendant's own health and safety obligations to persons in the vicinity of that work.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 19(2), 32
- Work Health and Safety Regulation 2017 (NSW), cl 7
- Criminal Procedure Act 1986 (NSW)
- Interpretation Act 1987 (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
- 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
- Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313
- Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
- Mahmood v Western Australia (2008) 232 CLR 397
- Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45
- 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
- Royall v The Queen (1991) 172 CLR 378