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District Court 14 November 2022

SafeWork NSW v Buddco Pty Limited

[2022] NSWDC 549

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS RISK OF DEATH OR SERIOUS INJURY OTHER

Citation: SafeWork NSW v Buddco Pty Limited [2022] NSWDC 549
Court: District Court of New South Wales
Date: 14 November 2022
Judge: Russell SC DCJ

Background

Buddco Pty Ltd (Buddco) was a company engaged by DIC Australia Pty Ltd (DIC) to maintain and service an ink manufacturing plant in Auburn, NSW. DIC manufactured ink products for the printing industry. Buddco's agreement with DIC covered all plant at the Auburn facility, including an ink holding tank in the "Blackshop" area of the factory where black ink was produced.

On 7 December 2017, Buddco engaged a contractor, who traded as Complete Blasting Solutions, to clean out the tank. While the contractor was inside the tank, an agitator (referred to as an anchor blade) activated automatically. The contractor became trapped between the side of the tank and the anchor blade and suffered fatal injuries. Workers who entered the tank to assist him, including a DIC employee, also suffered injuries.

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

  • Whether Buddco owed a health and safety duty to the workers under section 19(1) of the Work Health and Safety Act 2011 (NSW)
  • Whether Buddco failed to comply with that duty by not taking the measures particularised in the amended summons
  • Whether Buddco's breach of duty exposed the workers to a risk of death or serious injury, satisfying the requirements of a Category 2 offence under section 32 of the Act

Decision

Element 1: Duty of care. The District Court found that Buddco was a PCBU within the meaning of the Act and that it owed a health and safety duty to the workers under section 19(1). Buddco had control of the maintenance and servicing operation at the site, including the tank cleaning task, and had engaged the contractor to perform that work.

Element 2: Failure to comply. The court found that Buddco failed to comply with its duty in several significant respects. The electrical isolation procedure for the tank was inadequate. No external interlock switch or emergency stop was installed, and the court found that had Buddco requested DIC install an interlock, DIC would have done so. The side access hatch was removed before the anchor blade was electrically isolated. The confined space entry permit had been only partially completed. The job safety analysis and confined space entry procedures were inadequate, and there was no appropriate step-by-step isolation procedure with adequate instructions or supervision to support workers performing the task.

Element 3: Exposure to risk. The court was satisfied beyond reasonable doubt that the failures identified under Element 2 exposed the workers to a risk of death or serious injury. The court found that the confused and confusing approach Buddco had taken to isolating the tank was the main cause of the workers being exposed to that risk. Because Buddco had control of the entire process and could mandate how it was performed, its failure to provide and enforce a proper procedure was a direct and substantial cause of the anchor blade activating while a worker was inside the tank.

The court found the offence proved beyond reasonable doubt and returned a guilty verdict. The matter was listed for a sentence hearing.

Orders Made

  • The elements of the offence set out in the Amended Summons dated 23 June 2020 were proved beyond reasonable doubt
  • Buddco Pty Ltd was found guilty
  • The matter was listed for a sentence hearing on a date convenient to the parties

Key Takeaways

  • A PCBU that has control over a maintenance and servicing operation, including the engagement of subcontractors to perform tasks within that operation, can owe a health and safety duty under section 19(1) of the Work Health and Safety Act 2011 (NSW) to both the subcontractor and other workers exposed to risk at the site.
  • Under section 32 of the Act, a Category 2 offence requires proof beyond reasonable doubt of three elements: the existence of a health and safety duty, a failure to comply with it, and that the failure exposed an individual to a risk of death or serious injury or illness.
  • Inadequate electrical isolation procedures, the absence of an interlock switch or emergency stop, and a partially completed confined space entry permit were each identified as distinct failures contributing to the breach of duty.
  • The District Court found that where a PCBU holds control over an entire work process and has the power to mandate how it is performed, a failure to establish and enforce a clear step-by-step safety procedure can constitute the main cause of workers being exposed to a relevant risk.
  • Sufficient evidence existed to establish that DIC would have installed an interlock switch had Buddco requested it, making Buddco's failure to make that request a substantial cause of the risk to which the workers were exposed.

Legislation and Cases Referenced

Legislation:
- Work Health and Safety Act 2011 (NSW), ss 7, 12A, 16, 17, 18, 19, 32, 244, 274
- Work Health and Safety Regulation (NSW), cll 5, 36, 66
- Criminal Procedure Act 1986 (NSW), s 133
- Evidence Act 1995 (NSW), s 165

Cases:
- Baiada Poultry Pty Limited v The Queen [2012] HCA 14; (2012) 246 CLR 92
- Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Constantanidis v R [2022] NSWCA 4
- Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313
- Genner Constructions Pty Limited v WorkCover Authority of NSW [2001] NSWIR Comm 267; (2001) 110 IR 57
- Grasso Consulting Engineers Pty Ltd v SafeWork NSW; Grasso v SafeWork NSW [2021] NSWCCA 288
- Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
- Orr v Cobar Management Pty Ltd [2019] NSWDC 224
- Orr v Hunter Quarries Pty Ltd [2019] NSWDC 364
- Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378
- SafeWork NSW v Arkwood (Gloucester) Pty Ltd [2022] NSWDC 89
- Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316; (2011) 213 A Crim R 340
- 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
- SRA (NSW) v Dawson [1990] 37 IR 110
- 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