Citation: Saunders Civilbuild Pty Ltd v SafeWork New South Wales [2023] NSWCCA 261
Court: NSW Court of Criminal Appeal
Date: 18 October 2023
Judges: Beech-Jones CJ at CL; Walton J; McNaughton J
Background
The appellant was a construction company whose supervisor and a labourer were assisting a contract truck driver to unload bundles of timber piles at a worksite on 16 February 2018. During the unloading operation, the driver climbed on top of a pile of timber to readjust the attachment to an excavator, then signalled to the supervisor to lift the load. As the pile was lifted, the driver fell backwards from the truck onto the road, suffered a blunt force head injury, and died six days later.
The company's approach to managing the fall risk had been to issue verbal directions to its employees that they were not permitted to climb onto trucks or trailers, and to pre-sling loads so they could be managed from the ground. The trial judge found that no verbal direction was given to the contract driver on the day before the incident, or at any other time. Nor were such verbal directions systematically passed on to contract drivers before the incident occurred.
The company was convicted in the District Court of an offence under s 32 of the Work Health and Safety Act 2011 (NSW) (the WHS Act), being a failure to comply with a health and safety duty under s 19 that exposed a person to a risk of death or serious injury. It was fined $375,000 and ordered to publish two Adverse Publicity Notices. The company appealed against its conviction on three grounds.
Legal Issues
- Whether the evidence was sufficient to establish the charge beyond reasonable doubt, given the appellant's reliance on verbal directions and engineering controls as its safety measures
- Whether the trial judge was bound by reasoning in an earlier interlocutory ruling that the conjunction "and/or" in the charge particulars should be read as "and", and whether his Honour's subsequent use of "and/or" and "or" constituted legal error
- Whether the word "permitted" in a particular paragraph of the charge particulars was an essential fact that the prosecution was required to prove
Decision
The Court of Criminal Appeal dismissed all three grounds of appeal unanimously.
On Ground 1, the Court confirmed that s 19 of the WHS Act is contravened when a duty holder fails to take particular available measures to prevent an identifiable risk from eventuating. The Court found there was ample evidence to support the trial judge's conclusion that the company had not ensured, as far as reasonably practicable, the health and safety of workers at the site. Crucially, the company had never systematically conveyed the verbal direction or the engineering control of pre-slinging loads to contract drivers. The Court held that, given the company's own Integrated Management System relied on written procedures for other risks, it was incumbent on the company to evaluate whether written directions, training, and supervision were also warranted here. A documented practice requiring workers to acknowledge in writing their receipt and understanding of safety directions was, in the Court's view, a matter of common sense.
The Court also confirmed that post-incident changes made by the company, including inserting written instructions into its Safe Work Method Statements about working from the ground and fall protection, constituted evidence that practically available measures existed at the time of the incident which could have reduced or eliminated the risk. The Court rejected the argument that the supervisor's evidence, which he largely gave without contradiction in cross-examination, had to be accepted in full. A trial judge may accept some but not all of a witness's evidence, particularly where parts of that evidence are illogical, inherently unreliable, or contradicted by a credible body of other evidence.
Grounds 2 and 3 were also dismissed. The Court found that the trial judge's use of the conjunction "and/or" in the final judgment did not depart from his earlier interlocutory reasoning in a way that caused any legal error, and that the word "permitted" in the charge particulars was not an essential fact requiring independent proof by the prosecution.
Orders Made
- The appeal is dismissed.
- The parties have liberty to apply to Walton J within 21 days for directions in relation to any proposed appeal against sentence.
Key Takeaways
- Under s 19 of the WHS Act, a duty holder can breach its obligation to ensure health and safety by omitting to take a specific available measure to address a known risk, even where other informal safety practices were in place.
- Where a company's own safety management system relies on written procedures to manage risks, a failure to extend that written approach to a known and serious risk can, of itself, constitute a breach of the duty to ensure safety as far as reasonably practicable.
- Post-incident safety improvements are admissible as evidence that practicable risk-reduction measures existed at the time of the incident. The Court of Criminal Appeal applied this principle from earlier NSW and High Court authority.
- A trial judge is entitled to accept part of a witness's evidence while rejecting other parts, even where that evidence was not challenged in cross-examination, provided the rejected evidence is illogical, unreliable, or contradicted by a credible body of alternative evidence.
- The obligation to ensure safety under the WHS Act extends to sub-contractors and contract workers, not only direct employees. A supervisor with authority over sub-contractors carries significant obligations to implement written safety instructions or policies in relation to those workers.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19, 32, 155 (now Work Health and Safety Act 2022 (NSW), s 155)
- Criminal Appeal Act 2012 (NSW), s 5AA(1)(a)
Key Cases
- Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14 (distinguished)
- Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 (applied)
- Bulga Underground Operations Pty Ltd v Nash (2016) NSWLR 338; [2016] NSWCCA 37 (applied)
- Director of Public Prosecutions (Cth) v Poniatowska (2011) 244 CLR 408; [2011] HCA 43 (applied)
- Landmark Roofing Pty Ltd v Safe Work NSW [2021] NSWCCA 95 (applied)
- Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
- Davis v Langdon [1911] 11 SR (NSW) 149 (applied)
- Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; [2000] NSWIRComm 71
- Genner Constructions Pty Ltd v WorkCover Authority (NSW) (Inspector Guillarte) (2001) 110 IR 57 (applied)
- WorkCover Authority (NSW) v Fletcher Constructions Australia Ltd (2002) 123 IR 121; [2002] NSWIRComm 316 (applied)