AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
District Court 3 March 2021

SafeWork NSW v Rockfield Contracting Pty Ltd

[2021] NSWDC 35

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSON UNDERTAKING BUSINESS ELEMENTS OF OFFENCE REASONABLE PRACTICABILITY

Citation: SafeWork NSW v Rockfield Contracting Pty Ltd [2021] NSWDC 35
Court: District Court of New South Wales
Date: 3 March 2021
Judge: Russell SC DCJ

Background

The defendant, a company providing horizontal directional drilling services, was subcontracted to assist in the NBN Fibre Network Project at a worksite in Katoomba. On 1 April 2016, one of its employees was tracking a drill head during horizontal directional drilling operations. While the drill was being manoeuvred out of an exit pit so that the drill head could be removed from the drill string, the drill string and drill head, which contained stored energy, broke free from the earth and struck the worker, causing fatal injuries.

SafeWork NSW prosecuted the company for a Category 2 offence under s 32 of the Work Health and Safety Act 2011 (NSW). The prosecution alleged that the company, as a person conducting a business or undertaking, failed to comply with its health and safety duty under s 19(1) of the Act, and that this failure exposed the deceased worker to a risk of death or serious injury.

The defendant pleaded not guilty. The trial proceeded before a judge alone, with lay witness evidence, documentary evidence, and joint expert evidence forming the evidentiary foundation. The court noted a significant practical difficulty: a full transcript of proceedings was unavailable due to high demand on court reporting services, requiring the judgment to be prepared from handwritten notes.

  • Whether the defendant owed a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) to the deceased worker
  • Whether the defendant failed to comply with that duty by failing to implement the measures particularised in the summons (including establishing an exclusion zone, monitoring whether the worker was positioned in a danger zone, and providing appropriate personal protective equipment)
  • Whether the defendant's failure to comply with that duty exposed the worker to a risk of death or serious injury, sufficient to establish the third element of a Category 2 offence under s 32 of the Act
  • What the defendant knew or ought reasonably to have known about the relevant risk, for the purpose of assessing "reasonably practicable" under s 18 of the Act

Decision

The court found that all three elements of the Category 2 offence under s 32 of the Act were established beyond reasonable doubt.

On the first element, the court was satisfied that the defendant owed the deceased worker a health and safety duty as a person conducting a business or undertaking under s 19(1). This element was not meaningfully in dispute given the defendant's role as the employer conducting drilling operations at the site.

On the second element, the court assessed reasonable practicability under s 18, examining the likelihood of the risk, the degree of potential harm, what the defendant knew or ought reasonably to have known, and the availability and cost of ways to eliminate or minimise the risk. The court found that simple, cost-free, and effective measures were available to the defendant, including the establishment of an exclusion zone and observation of the worker's position relative to the danger zone. The defendant had the knowledge, or ought to have had the knowledge, necessary to implement these measures, and its failure to do so constituted a breach of its health and safety duty.

On the third element, the court applied the causation principle from Bulga Underground Operations v Nash [2016] NSWCCA 37: the relevant question is not whether the defendant's failures caused the death, but whether those failures were a substantial or significant cause of the worker being exposed to the risk of death or serious injury. Given the availability of simple preventive measures and the defendant's awareness of the risk, the court found the breach was a substantial contributing factor to the risk. The defendant was found guilty, with sentencing to be determined separately.

Orders Made

  • The elements set out in the summons filed on 7 March 2018 were proved beyond reasonable doubt
  • The defendant Rockfield Contracting Pty Ltd was found guilty
  • The matter was listed for a sentence hearing on a date convenient to the parties

Key Takeaways

  • Under s 32 of the Work Health and Safety Act 2011 (NSW), a Category 2 offence requires proof beyond reasonable doubt of three elements: that the defendant owed a health and safety duty, that the defendant failed to comply with that duty, and that the failure exposed an individual to a risk of death or serious injury.
  • The District Court confirmed, following Bulga Underground Operations v Nash, that the causation inquiry on the third element asks whether the defendant's breach was a substantial or significant cause of the worker being exposed to the risk, not whether it caused the actual injury or death.
  • Assessing "reasonably practicable" under s 18 of the Act requires the court to weigh factors including the likelihood of the risk, the degree of potential harm, what the defendant knew or ought to have known, and the availability and cost of risk-reduction measures. The availability of simple, cost-free measures weighs heavily against a defendant.
  • A failure to establish an exclusion zone, monitor a worker's proximity to a danger zone, or provide adequate personal protective equipment during high-risk drilling operations can satisfy the failure-to-comply element, even where those measures would have been straightforward to implement.
  • The absence of a full court transcript, owing to resource constraints on the Reporting Services Branch, required the judgment to be prepared from handwritten notes, a circumstance the court expressly noted as unsatisfactory given the gravity of the proceedings and the potential penalty of up to $1,500,000.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 4, 7, 12, 16, 17, 18, 19, 32, 230, 244
- Criminal Procedure Act 1986 (NSW), s 133

Cases
- Bulga Underground Operations v Nash [2016] NSWCCA 37
- Baiada Poultry Pty Limited v The Queen [2012] HCA 13; (2012) 246 CLR 92
- Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304
- Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316
- Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
- SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Ltd (No. 2) [2020] NSWDC 668
- Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378
- Smith v Broken Hill Pty Ltd [1957] HCA 34; (1957) 97 CLR 337
- Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313
- Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267; (2001) 110 IR 57
- WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453
- Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015