Citation: SafeWork NSW v Saunders Civilbuild Pty Ltd [2021] NSWDC 605
Court: District Court of New South Wales
Date: 10 November 2021
Judge: Scotting DCJ
Background
Saunders Civilbuild Pty Ltd was a construction company operating piling and civil works services. On 16 February 2018, it engaged a contracted truck driver, Geoffrey Edwards, to deliver an excavator and timber piles to a residential building site at Shoal Bay, New South Wales. Two of the defendant's employees, a supervisor and a labourer/dogman, were present to assist with unloading.
During the unloading of the first bundle of timber piles, Mr Edwards climbed onto the top of the loaded trailer to attach rigging slings to the excavator arm. After that bundle was lifted, Mr Edwards fell from the truck and sustained a serious head injury, from which he died several days later.
SafeWork NSW charged the defendant with failing to comply with its primary health and safety duty under s 19(1) of the Work Health and Safety Act 2011, in circumstances where that failure exposed workers, including Mr Edwards and a co-worker, to a risk of death or serious injury, contrary to s 32 of the Act.
Legal Issues
- Whether the use of the word "permitted" in the prosecution's summons altered the nature of the offence that had to be proven (Issue 1)
- Whether the defendant failed to comply with its health and safety duty by failing to take the specific steps particularised in the summons, including providing a safe work method statement and consulting with Mr Edwards on fall risks (Issue 2)
- Whether particular (d) of the alleged failures, relating to consultation, was bad at law and should be struck out (Issue 3)
Decision
The defendant admitted that the prosecution's evidence was capable of proving three of the four elements of the offence beyond reasonable doubt. The contested issue was Element 3: whether the defendant had failed to comply with its health and safety duty by not taking reasonably practicable steps to address the fall risk.
On Issue 1, the court found that the word "permitted" in the summons did not transform the offence into one requiring proof that the defendant had affirmatively allowed or authorised the conduct. The prosecution was not required to prove that the defendant gave express or implied permission for workers to climb onto the truck. The duty under s 19(1) is a broad one, and the pleading was read in context.
On Issue 2, the court was satisfied beyond reasonable doubt that the prosecution had established the failure element. The defendant had not provided and implemented an adequate safe work method statement or procedure for unloading materials from heavy vehicles, including requirements that rigging be performed from the ground and that fall prevention measures be in place before any worker accessed the top of a load.
On Issue 3, the court rejected the defendant's argument that particular (d), which related to consulting with Mr Edwards about fall risks, was bad at law. The court found no legal barrier to the prosecution pleading that a breach of the s 19(1) duty could be established by failing to take the reasonably practicable step of consulting on topics provided for in the Act or the relevant consultation code, in an appropriate case. The defendant was found guilty.
Orders Made
No orders were made in this decision.
Key Takeaways
- The District Court held that a principal contractor's health and safety duty under s 19(1) of the Work Health and Safety Act 2011 extends to contracted workers whose activities are influenced or directed by the business, not only direct employees.
- A conviction under s 32 of the Act does not require proof that the defendant expressly or impliedly "permitted" dangerous conduct; the duty is broader than a permission-based analysis.
- Failure to implement a safe work method statement addressing foreseeable fall risks during unloading operations can constitute a breach of the primary duty, even where informal working arrangements between experienced personnel had developed over many years.
- Under s 19(1), a reasonably practicable step may include consulting with a contracted worker about specific hazards; a prosecution particular framed around such consultation is not legally defective merely because consultation is also addressed elsewhere in the Act.
- The existence of a documented integrated management system does not, of itself, discharge the primary duty where site-level systems of work do not operationalise the safety controls described in that system.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32, 46
- Work Health and Safety Regulation 2017 (NSW)
- Occupational Health and Safety Act 2000 (NSW)
Cases
- Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
- Baiada Poultry Pty Ltd v R (2012) 246 CLR 92
- 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
- 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
- Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104
- R v Board of Trustees of the Science Museum [1993] 1 WLR 1171
- Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209