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District Court 30 March 2022

SafeWork NSW v Arkwood (Gloucester) Pty Limited

[2022] NSWDC 89

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

Citation: SafeWork NSW v Arkwood (Gloucester) Pty Limited [2022] NSWDC 89
Court: District Court of New South Wales
Date: 30 March 2022
Judge: Russell SC DCJ

Background

Arkwood (Gloucester) Pty Limited was a business subcontracted by Wingecarribee Shire Council to manage biosolids at the Moss Vale Sewerage Treatment Plant. As part of that work, Arkwood engaged a sole trader to provide mobile crane services to load a dismantled centrifuge onto a flatbed truck. Two of Arkwood's own employees were on site assisting with the task.

On 25 October 2018, the boom of the crane came into contact with, or in close proximity to, live overhead power lines at the site. Both employees suffered electric shocks. The crane operator was employed by the crane contractor, not directly by Arkwood.

SafeWork NSW prosecuted Arkwood under section 32 of the Work Health and Safety Act 2011 (NSW), alleging a Category 2 offence: that Arkwood failed to comply with its health and safety duty under section 19(1), and that this failure exposed workers to a risk of death or serious injury. Arkwood pleaded not guilty.

  • Whether Arkwood owed a health and safety duty under section 19(1) of the Work Health and Safety Act 2011 (NSW) to the workers present at the site.
  • Whether Arkwood failed to comply with that duty by not taking the steps particularised in the summons, including failing to conduct a site-specific risk assessment, failing to have an appropriate Safe Work Method Statement (SWMS), failing to adequately instruct and train employees, failing to have a qualified dogman present, and failing to provide warnings about the overhead power lines.
  • Whether any such failure exposed workers to a risk of death or serious injury.
  • Whether Arkwood could rely on the engagement of a specialist crane contractor as a defence to the alleged failure.

Decision

The court found, beyond reasonable doubt, that Arkwood owed a health and safety duty to the workers under section 19(1) of the Act. Two of the workers were Arkwood's employees, and their activities were directed and influenced by Arkwood. The crane operator, though employed by the crane contractor, was also within the scope of the duty because his work was influenced by Arkwood.

On the question of whether the duty was breached, the court assessed what was "reasonably practicable" under section 18 of the Act. That assessment involved weighing the likelihood of the risk, the potential degree of harm, what Arkwood knew or ought to have known, and the availability and cost of control measures. The court found that Arkwood was aware, or should have been aware, of the presence of live overhead power lines at the site, and that crane operations in proximity to those lines created a serious and foreseeable risk of harm.

The court rejected the proposition that Arkwood could discharge its duty simply by delegating work to a specialist crane contractor. Specific failures were identified: Arkwood did not conduct a site-specific risk assessment; there was no adequate SWMS in place; workers were not properly instructed or trained; no qualified dogman was required to be present; and no one was designated to monitor and warn the crane operator about the proximity of the boom to the power lines.

The court was satisfied beyond reasonable doubt that these failures were a significant or substantial contributing factor to the workers being exposed to the risk. Had a proper risk assessment been carried out and appropriate control measures implemented, either the lifting work would have been conducted away from the power lines or a spotter would have warned the crane operator before the boom approached danger. Arkwood was found guilty of the Category 2 offence.

Orders Made

  • The elements set out in the Summons dated 22 October 2020 were proved beyond reasonable doubt.
  • Arkwood (Gloucester) Pty Limited was found guilty.
  • The matter was listed for a sentence hearing on a date convenient to the parties.

Key Takeaways

  • A person conducting a business or undertaking (PCBU) cannot discharge its section 19(1) duty under the Work Health and Safety Act 2011 (NSW) simply by engaging a specialist contractor to perform a task. Arkwood retained an independent obligation to take reasonably practicable steps to ensure worker safety, including steps related to the crane operations it arranged.

  • Where overhead power lines are present at a worksite and crane operations are planned, a site-specific risk assessment and appropriate SWMS are among the measures a court may find to be reasonably practicable, even where the lifting work is carried out by a contracted crane operator.

  • The District Court confirmed that the section 18 "reasonably practicable" analysis is a weighing exercise, and where risks are serious and control measures are simple and inexpensive, the threshold for what the duty-holder must do is correspondingly higher.

  • Establishing the third element of a Category 2 offence (exposure to a risk of death or serious injury) does not require proof that actual injury was caused by the specific failure. It is sufficient to show that the failure was a significant or substantial contributing factor to the existence of the risk.

  • Under the Act, the duty extends beyond a PCBU's direct employees to any workers whose activities at the workplace are influenced or directed by the PCBU, potentially including the employees of engaged contractors.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 4, 7, 12A, 16, 17, 18, 19, 23C, 32, 155, 244, 275
- Work Health and Safety Regulation 2017 (NSW), cll 166, 291, 299
- Criminal Procedure Act 1986 (NSW), s 133

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
- Landmark Roofing Pty Ltd v SafeWork NSW [2021] NSWCCA 95
- Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39
- Poletti Corporation Pty Limited v SafeWork NSW [2020] NSWCCA
- Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378
- SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Limited (No. 2) [2020] NSWDC 668
- 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