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District Court 12 August 2022

SafeWork NSW v Bennett

[2022] NSWDC 332

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

Citation: SafeWork NSW v Bennett [2022] NSWDC 332
Court: District Court of New South Wales
Date: 12 August 2022
Judge: Russell SC DCJ

Background

The defendant, Mr Nigel Bennett, operated a sole-trader crane hire business trading as Highlands Cranes. He was subcontracted to provide a mobile crane and operator at the Moss Vale Sewerage Treatment Plant to lift a dismantled centrifuge onto a flatbed truck. The principal contractor for the work was Wingecarribee Shire Council, which had subcontracted a company called Arkwood to manage the works.

Mr Bennett allocated one of his employees, Mr Kane Druce, to operate the crane on site. During the lifting operation on 25 October 2018, the crane's boom came into contact with, or in very close proximity to, live overhead power lines. Two other men present on site, Mr Peter Voight and Mr Gregory Whitford (both Arkwood employees), suffered electric shocks.

SafeWork NSW charged Mr Bennett with two Category 2 offences under s 32 of the Work Health and Safety Act 2011 (NSW). The first charge alleged he failed his duty under s 19(1) to ensure the safety of workers in his business. The second alleged he failed his duty under s 19(2) to ensure other persons were not put at risk by his work. Mr Bennett pleaded not guilty to both charges and represented himself at trial, assisted by a McKenzie Friend.

  • Whether Mr Bennett was conducting a business or undertaking within the meaning of the Act
  • Whether he owed a health and safety duty to Mr Druce under s 19(1), and to Mr Voight and Mr Whitford under s 19(2)
  • Whether he failed to comply with those duties by not taking the reasonably practicable steps particularised in each summons
  • Whether those failures exposed the three men to a risk of death or serious injury

Decision

The court found that Mr Bennett was plainly conducting a business or undertaking and that he owed Mr Druce a duty as his employee under s 19(1). During closing submissions, the prosecutor conceded that Mr Voight and Mr Whitford were not "workers" within the meaning of the Act, meaning the s 19(1) charge was confined to Mr Druce. However, both men remained protected as "other persons" under s 19(2), and that charge proceeded as pleaded.

The court found that Mr Bennett failed to comply with his duties in multiple respects. He permitted an unqualified worker to operate the crane, did not provide a qualified crane driver, failed to ensure Mr Druce completed a site induction, did not conduct or require a site-specific risk assessment or joint safety assessment, failed to ensure the crane was kept away from the overhead power lines, and did not require a dedicated spotter or qualified dogman to supervise the lift.

The court further found that Mr Bennett was aware, or ought reasonably to have been aware, of the risk posed by overhead power lines to crane operations. The measures that should have been taken were described as simple, inexpensive, and effective. The court was satisfied that these failures were a significant and substantial contributing factor to the risk that materialised.

On the question of exposure to risk, the court held that had proper precautions been in place, either the crane would have been positioned away from the power lines or a spotter would have warned Mr Druce before the boom reached a dangerous proximity. The court was satisfied beyond reasonable doubt that all four elements of both Category 2 offences were proved, and entered findings of guilty on both charges.

Orders Made

  • The elements of the s 19(1) summons were proved beyond reasonable doubt; Mr Nigel Bennett found guilty
  • The elements of the s 19(2) summons were proved beyond reasonable doubt; Mr Nigel Bennett found guilty
  • The matter listed for a sentence hearing on a date convenient to the parties

Key Takeaways

  • A sole trader who hires out crane services and provides a crane operator constitutes a "person conducting a business or undertaking" for the purposes of the Work Health and Safety Act 2011 (NSW), attracting duties under both s 19(1) and s 19(2).
  • Where a prosecutor concedes mid-trial that certain individuals are not "workers" within the Act, the category of protected persons under s 19(1) narrows accordingly, but those individuals may still be "other persons" protected by the separate duty in s 19(2).
  • Multiple cumulative failures, including permitting an unqualified person to operate a crane, omitting a site-specific risk assessment, and failing to deploy a spotter near live overhead power lines, together constituted a failure to take reasonably practicable steps and were collectively sufficient to satisfy the breach element.
  • Exposure to a "risk" of death or serious injury, not proof of actual injury to the person subject to the duty, is what s 32 requires. The court found this element satisfied even though the electric shocks were suffered by persons in the "other persons" category rather than by the employee operating the crane.
  • Knowledge of a risk is assessed by reference to what the defendant knew or ought reasonably to have known. The court found that the hazard posed by overhead power lines to crane operations was sufficiently well-known that Mr Bennett was fixed with constructive knowledge of it regardless of his actual awareness on the day.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 7, 12A, 16, 17, 18, 19, 32, 275
- Work Health and Safety Regulation 2017 (NSW), cll 166, 291, 299
- Criminal Procedure Act 1986 (NSW), s 133(2)
- Evidence Act 1995 (NSW), s 38

Cases
- Baiada Poultry Pty Limited v The Queen [2012] HCA 13; (2012) 246 CLR 92
- Bulga Underground Operations v Nash [2016] NSWCCA 37
- 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
- Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288
- Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
- Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39
- Poletti Corporation Pty Limited v SafeWork NSW [2020] NSWCCA 243
- Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378
- Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316
- Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304
- Smith v Broken Hill Pty Ltd [1957] HCA 34; (1957) 97 CLR 337
- Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015
- WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453