Citation: Grasso Consulting Engineers Pty Ltd v SafeWork NSW; Grasso v SafeWork NSW [2021] NSWCCA 288
Court: NSW Court of Criminal Appeal
Date: 10 December 2021
Judges: Simpson AJA, Walton J, Cavanagh J
Background
A roof structure collapsed during demolition work, prompting SafeWork NSW to prosecute a structural engineering firm and its director under s 32 of the Work Health and Safety Act 2011 (NSW). The engineering firm had provided structural advice, including certificates in February and March 2016, to the demolition contractor. The central allegation was that the firm and its director failed to comply with their respective health and safety duties by not conducting adequate engineering analysis, specifically by relying on manual calculations rather than computer modelling.
The District Court convicted both the firm and its director, finding that their engineering analysis was insufficient given the size and complexity of the project, and that this failure exposed demolition workers to the risk of death or serious injury. The convictions were appealed to the Court of Criminal Appeal on multiple grounds, challenging both the findings of breach and the element of causation.
Legal Issues
- Whether the engineering firm and its director failed to comply with their health and safety duties under ss 19 and 27 of the WHS Act by not undertaking computer modelling to validate manual engineering calculations
- Whether that failure was a substantial and significant cause of demolition workers being exposed to the risk of death or serious injury, as required for a conviction under s 32
- Whether intervening acts or decisions by others severed the causal chain between the alleged failures and the workers' exposure to risk
Decision
On breach: The Court of Criminal Appeal upheld the District Court's findings on the question of breach. The trial judge had found that the firm's reliance on manual "hand calculations," without computer modelling to validate or confirm them, fell short of the applicable duty given the project's size and complexity. That conclusion was not disturbed on appeal. The Court confirmed that the firm and its director had failed to comply with their respective duties under the WHS Act.
On causation: All three judges agreed that the convictions could not stand because causation had not been established. The critical distinction drawn by the Court was between failing to comply with a duty (the second element of a s 32 offence) and exposure to risk caused by that failure (the third element). These must be kept separate, and the prosecution must prove both.
The chain is severed: The engineering advice the firm provided was not acted upon. Instead, the demolition proceeded according to a plan prepared by a different person, Mr Arnold. The demolition workers were exposed to risk because of that plan, not because of anything the engineering firm or its director failed to do. The Court found that too many intervening events and factors stood between the firm's omissions and the workers' exposure to risk to permit a finding that those omissions were a substantial and significant cause of the harm.
Alternative causation argument rejected: The Court also rejected an alternative causation argument advanced by SafeWork NSW, finding an absence of evidence establishing how and why the failure to undertake computer modelling constituted a substantial cause of the risk to which the workers were actually exposed at the time it materialised.
Orders Made
- GCE's appeal allowed; conviction quashed; SafeWork NSW to pay GCE's costs in the District Court
- Grasso's appeal allowed; conviction quashed; SafeWork NSW to pay Grasso's costs in the District Court
- Leave granted to the parties to apply for variation of the costs orders
Key Takeaways
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A conviction under s 32 of the WHS Act requires proof of three distinct elements: existence of a health and safety duty, failure to comply with that duty, and exposure of an individual to the risk of death or serious injury caused by that failure. The Court of Criminal Appeal emphasised that elements two and three must be kept analytically separate.
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Where an engineering firm's advice is not followed and the work instead proceeds according to a different person's plan, the causal connection between the firm's breach and the workers' exposure to risk may be severed entirely.
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Insufficient expert evidence linking a specific omission (here, the failure to undertake computer modelling) to the actual risk materialised can be fatal to establishing the causation element of a WHS prosecution, even where a breach is otherwise proved.
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The District Court's finding that relying on manual calculations without computer modelling constituted a breach of duty was upheld, confirming that the standard of care under the WHS Act is assessed against the size, scale, and complexity of the particular project.
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Under s 19(2) of the WHS Act, a person conducting a business or undertaking bears a duty to ensure that the health and safety of other persons is not put at risk from work carried out as part of that business. Under s 27(1), an officer of such an entity must exercise due diligence to ensure the entity meets that obligation.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 17, 19, 27, 32
- Work Health and Safety (National Uniform Legislation Act) 2011 (NT)
- Criminal Appeal Act 1912 (NSW)
- Occupational Health and Safety Act 2004 (Vic)
Cases:
- Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428; [2019] HCA 2
- Kirk v Industrial Court of New South Wales and Another (2010) 239 CLR 531; [2010] HCA 1
- Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
- Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14
- Poletti Corporation Pty Ltd v SafeWork NSW [2020] NSWCCA 243
- Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19
- Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27
- Rosenberg v Percival (2001) 205 CLR 434; [2001] HCA 18
- Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676; [2016] VSCA 55
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266
- SafeWork NSW v Grasso Consulting Engineers Pty Ltd; SafeWork NSW v Ignazio Grasso [2019] NSWDC 792
- SafeWork NSW v Grasso Consulting Engineers Pty Ltd; SafeWork NSW v Grasso (No 2) [2020] NSWDC 188