Citation: HD Projects Pty Ltd v SafeWork NSW [2022] NSWCCA 212
Court: Court of Criminal Appeal, New South Wales
Date: 30 September 2022
Judge(s): Macfarlan JA, Hamill J, Cavanagh J
Background
HD Projects Pty Ltd was engaged as a subcontractor to supply and install wall panels at a residential construction site in Kellyville, Sydney. To fulfil that contract, HD Projects used labour hire workers sourced from a third-party agency, Hunter Labour Hire Pty Ltd. One of those workers, Mr Dessens, was working at ground level on the day of the incident assisting with crane operations to lift packs of panels to the first floor.
During the lifting operation, Mr Dessens secured a pack of panels incorrectly, inserting the crane hook's tynes into the second-from-bottom panel and leaving the lowest panel held in place only by plastic wrapping. When the crane lifted the pack, the bottom panel fell and struck two scaffolding workers employed by a separate subcontractor, Erectus Scaffolding Pty Ltd. One of those workers sustained serious injuries.
The District Court found HD Projects guilty of an offence under section 32 of the Work Health and Safety Act 2011 (NSW), arising from a breach of its duty under section 19(2) to ensure, so far as reasonably practicable, that the health and safety of others was not put at risk by work carried out as part of the conduct of its business or undertaking. HD Projects was fined $170,000 and appealed its conviction to the Court of Criminal Appeal.
Legal Issues
- Whether the cranage work performed by Mr Dessens was carried out "as part of the conduct" of HD Projects' business or undertaking for the purposes of section 19(2) of the WHS Act.
- Whether the two injured Erectus workers were "other persons" whose health and safety were put at risk within the meaning of section 19(2).
- Whether the trial judge erred in finding that Mr Dessens was an employee or agent of HD Projects, and that his conduct was therefore imputable to HD Projects under section 244 of the WHS Act.
- Whether Mr Dessens acted within the scope of his employment or actual or apparent authority.
- Whether HD Projects' on-site supervisor, Mr Hamburger, knew or ought to have known that HD Projects' workers were participating in the cranage work.
Decision
The Court of Criminal Appeal dismissed all five grounds of appeal and upheld the conviction.
On the first and most significant ground, the Court found that the cranage work was properly characterised as part of the conduct of HD Projects' business or undertaking. Although the principal contractor, Arise, had contracted separately for crane services, HD Projects' own Safe Work Method Statement addressed the delivery and lifting of panels as a step within its scope of work. Mr Dessens was a labour hire worker engaged on behalf of HD Projects and was performing work that served HD Projects' commercial purpose on the site. The Court rejected the argument that he was acting independently or outside the scope of his role.
The Court accepted that the trial judge had erred in finding that Mr Dessens was an employee or agent of HD Projects for the purposes of section 244 of the WHS Act, which provides a mechanism for imputing the conduct of workers to a person conducting a business or undertaking. However, the Court held that this error was not material. The finding that the cranage work was part of HD Projects' business or undertaking did not depend on section 244 imputation at all. The conclusion was independently supported by findings about the nature of HD Projects' role, its work method statements, and Mr Hamburger's supervisory presence and knowledge.
On the remaining grounds, the Court upheld the trial judge's findings that Mr Hamburger knew or should have known that HD Projects' workers, including Mr Dessens, were participating in the cranage work for approximately two hours before the incident. The Court also confirmed that no exclusion zone had been established as required by HD Projects' own safety documentation, and that practical steps such as providing the manufacturer's instruction manual and defining prohibited tasks had not been taken. These findings were sufficient to sustain the conviction independently of the imputation issue.
Orders Made
- The appeal was dismissed.
Key Takeaways
- A conviction under section 19(2) of the Work Health and Safety Act 2011 (NSW) can be sustained where a labour hire worker's activities were integral to the host company's contractual purpose and carried out on its behalf, without any need to rely on the statutory imputation mechanism in section 244 of the Act.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that an error concerning section 244 imputation will not be material where the relevant factual findings on the scope of the business or undertaking stand independently.
- Where a host employer's own Safe Work Method Statement addresses a task as part of its scope of work, that documentation can support a finding that work performed in connection with that task falls within the conduct of the host's business or undertaking.
- A labour hire worker is not acting "on a frolic of his own" merely because he is technically employed by a third-party agency, if the work he performs serves the host's commercial purpose and falls within the scope of his engagement at the site.
- Under section 5AA of the Criminal Appeal Act 1912 (NSW), the Court noted that appeals are not expressly confined to errors of law and left open whether broader factual challenge principles, comparable to those in civil appeals, may apply, though it was unnecessary to resolve that question in this case.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 7, 19, 32, 244
- Criminal Appeal Act 1912 (NSW), s 5AA
- District Court Rules 1973 (NSW), r 53.26(3)
Cases:
- Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
- Landmark Roofing Pty Ltd v SafeWork NSW [2021] NSWCCA 95
- Grasso Consulting Engineers Pty Ltd v SafeWork NSW; Grasso v SafeWork NSW [2021] NSWCCA 288
- Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
- Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
- Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616; [1976] HCA 62
- Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10
- Histollo Pty Ltd v Director-General of National Parks & Wildlife Service (1998) 45 NSWLR 661
- Mersey Docks and Harbour Board v Coggins & Griffiths (Liverpool) Limited [1947] AC 1
- Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1
- Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; [2006] HCA 19
- TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47